# COMMON CAUSE (A REGD. SOCIETY) & ORS v. UNION OF INDIA & ORS

- **Citation:** [2018] 6 S.C.R. 901
- **Court:** Supreme Court of India
- **Decided:** 2018-07-02
- **Bench:** Arun Mishra, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/common-cause-a-regd-society-ors-v-union-of-india-ors-32828
- **Pages:** 59

## Headnote

Judicial Review:
Writ petition u/Art. 32 of Constitution - Challenging
appointment of respondent No. 2 as Central Vigilance Commissioner
(CVC) and of respondent No. 3 as Vigilance Commissioner (VC)
- Seeking quashing of the appointments on the ground that it were
illegal and void being violative of the principles of 'impeccable
integrity' and 'institutional integrity' - Held: Judicial determination
is confined to the integrity of the decision making process - If the
decision is influenced by extraneous considerations or selection is
made in breach of the statute or rules, it can be set aside - It is not
for the Court to decide on the choice - Government is not
accountable to the courts for the choice made - Government is
accountable to the Courts in respect of lawfulness/legality of its
decision - In the present case, the decision to appoint respondent
No. 2 cannot be said to be influenced by extraneous considerations,
and choice of respondent No. 2 cannot be said to be such which is
amenable for interference by the Court in judicial review - Also no
case is made out with respect to appointment of respondent No. 3 to
make interference in judicial review - Constitution of India - Art. 32.
Disposing of the Writ Petitions, the Court
HELD: 1.1 It is alleged against respondent No.2 that he
had met Mr. Ranjit Sinha, CBI Director on 29.12.2013 and
20.4.2014 for 15 minutes on earlier occasions and 8 minutes on a
later date. When the meetings were held, respondent No.2 was
probing the interception dealings of Hawala dealer Mr. Moin
Qureshi. Mr. Ranjit Sinha, Director, CBI, was investigating Stock
Guru scam where senior income tax officers were involved in
which Mr. Sinha was investigating the role of respondent No.2.
It was usual to meet for Heads of various investigating agencies
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in connection with official work. There being no other material to
substantiate aforesaid aspersions it is simpliciter an assumption
that the meetings took place with an evil design. The highest
officers might have discussed the other issues. There is no other
supporting material to substantiate the aforesaid aspersions. How
the help was extended, in what manner and in Stock Guru scam
there was no allegation against respondent No.2 in any manner
whatsoever. Thus, it is far-fetched to urge that the aforesaid
meetings were to extend help to each other. [Paras 66, 69][939G-H; 941-D-E]
1.2 With respect to Stock Guru, the investigation was made
not by respondent No.2 but by Deputy Director of Income-tax
(Investigation) and under Additional Director of Investigation,
reporting to Director of Investigation, Investigation-II, Delhi,
who in turn reported to the respondent, the then Additional D.G.
(IG) Investigation, Delhi. Such conduct on 6.2.2012 led to a
seizure of Rs.34.96 crores in cash. Initially, there was a complaint
by Mr. Anil Kumar Agrawal (who had nothing to do with this case)
that the cash belonged to various depositors and it should not
have been seized. On a case filed, the amount was deposited in
court as per the order passed by the court. Appraisal report was
prepared by the I.O. and sent to assessing officer who initiated
assessment proceedings. However, on 3.6.2013 the CBI started
an investigation into the conduct of the then I.O. of Stock Guru.
The name of respondent No.2 did not figure in the First
Information Report filed by the CBI. No wrongdoing, no
shortcoming was found by any authority in the action of respondent
No.2 when 13 allegations were made by Mr. Anil Kumar Agarwal
against respondent No.2. The CVC, Department of Revenue and
Department of CBDT got the issues enquired and allegations
were found to be baseless. [Para 70][941-F-H; 942-A-B]
1.3 With respect to the allegations made by Mr. Anil Kumar
Agrawal, it was clear that since he was criminally prosecuted under
section 182 IPC and disciplinary proceedings, had been initiated
against him by the Institute of Chartered Accountant

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[2018] 6 S.C.R. 901
COMMON CAUSE (A REGD. SOCIETY) & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 505 of 2015)
JULY 02, 2018
[ARUN MISHRA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Judicial Review:
Writ petition u/Art. 32 of Constitution - Challenging
appointment of respondent No. 2 as Central Vigilance Commissioner
(CVC) and of respondent No. 3 as Vigilance Commissioner (VC)
- Seeking quashing of the appointments on the ground that it were
illegal and void being violative of the principles of 'impeccable
integrity' and 'institutional integrity' - Held: Judicial determination
is confined to the integrity of the decision making process - If the
decision is influenced by extraneous considerations or selection is
made in breach of the statute or rules, it can be set aside - It is not
for the Court to decide on the choice - Government is not
accountable to the courts for the choice made - Government is
accountable to the Courts in respect of lawfulness/legality of its
decision - In the present case, the decision to appoint respondent
No. 2 cannot be said to be influenced by extraneous considerations,
and choice of respondent No. 2 cannot be said to be such which is
amenable for interference by the Court in judicial review - Also no
case is made out with respect to appointment of respondent No. 3 to
make interference in judicial review - Constitution of India - Art. 32.
Disposing of the Writ Petitions, the Court
HELD: 1.1 It is alleged against respondent No.2 that he
had met Mr. Ranjit Sinha, CBI Director on 29.12.2013 and
20.4.2014 for 15 minutes on earlier occasions and 8 minutes on a
later date. When the meetings were held, respondent No.2 was
probing the interception dealings of Hawala dealer Mr. Moin
Qureshi. Mr. Ranjit Sinha, Director, CBI, was investigating Stock
Guru scam where senior income tax officers were involved in
which Mr. Sinha was investigating the role of respondent No.2.
It was usual to meet for Heads of various investigating agencies
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in connection with official work. There being no other material to
substantiate aforesaid aspersions it is simpliciter an assumption
that the meetings took place with an evil design. The highest
officers might have discussed the other issues. There is no other
supporting material to substantiate the aforesaid aspersions. How
the help was extended, in what manner and in Stock Guru scam
there was no allegation against respondent No.2 in any manner
whatsoever. Thus, it is far-fetched to urge that the aforesaid
meetings were to extend help to each other. [Paras 66, 69][939G-H; 941-D-E]
1.2 With respect to Stock Guru, the investigation was made
not by respondent No.2 but by Deputy Director of Income-tax
(Investigation) and under Additional Director of Investigation,
reporting to Director of Investigation, Investigation-II, Delhi,
who in turn reported to the respondent, the then Additional D.G.
(IG) Investigation, Delhi. Such conduct on 6.2.2012 led to a
seizure of Rs.34.96 crores in cash. Initially, there was a complaint
by Mr. Anil Kumar Agrawal (who had nothing to do with this case)
that the cash belonged to various depositors and it should not
have been seized. On a case filed, the amount was deposited in
court as per the order passed by the court. Appraisal report was
prepared by the I.O. and sent to assessing officer who initiated
assessment proceedings. However, on 3.6.2013 the CBI started
an investigation into the conduct of the then I.O. of Stock Guru.
The name of respondent No.2 did not figure in the First
Information Report filed by the CBI. No wrongdoing, no
shortcoming was found by any authority in the action of respondent
No.2 when 13 allegations were made by Mr. Anil Kumar Agarwal
against respondent No.2. The CVC, Department of Revenue and
Department of CBDT got the issues enquired and allegations
were found to be baseless. [Para 70][941-F-H; 942-A-B]
1.3 With respect to the allegations made by Mr. Anil Kumar
Agrawal, it was clear that since he was criminally prosecuted under
section 182 IPC and disciplinary proceedings, had been initiated
against him by the Institute of Chartered Accountants of India at
the instance of respondent No.2 and respondent No.2 had deposed
against him in the criminal case in the court and once upon time
Mr. Anil Kumar Agrawal had appreciated the gesture of
respondent No.2 it was clearly an afterthought for him to level
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the allegations which were without any supporting material and
had never been substantiated by any material. In the newspaper
report dated 15.4.2014 name of respondent No.2 was not
mentioned, no supervisory failure was attributed. Respondent
No.2 was not subjected to an investigation by the CBI. Thus, the
aforesaid cast of aspersions upon respondent No.2 by the
petitioners has no basis. Same is not substantiated by any material.
[Para 71][942-C-E]
1.4 File No.245/32/2015-AVD.II has been produced which
contains the answers of CBI with respect to various queries made
which were on the basis of the complaint. It has been mentioned
that the CBI has investigated the relevant case during the tenure
of Mr. Ranjit Sinha in the Stock Guru scam on the basis of a
complaint received from E.O.W., Delhi Police, relating to demand
and acceptance of illegal gratification from Mr. Ulhas Prabhakar
of M/s. Stock Guru by Mr. Yogender Mittal (IRS-2006), ADIT to
help him in the income-tax case. The investigation did not reveal
the involvement of respondent No.2. It was also noted that nothing
came to the notice of CBI against respondent No.2. [Para 72][942F-G]
1.5 Another aspersion on the integrity cast is relating to a
search conducted by criminal investigation division of incometax on Ponty Chadha group M/s. Flora and Fauna Housing
Development Pvt. Ltd. on 1.2.2012. It was alleged that
respondent No.2 abused his position to under-assess the income
of the said company by an amount of Rs.234 crores. It was alleged
that he issued a direction to the assessing officer to dispose of
the case in a particular manner which could not have been done
in view of section 119 of the Income Tax Act and judgment of this
Court. Respondent No.2 agreed with the conclusion of the
aforesaid officers. In that matter, respondent No.2 had not taken
any decision. The decision was taken by the Assessing Officer
and the Additional Commissioner in whom the power vested. As
the matter was to be decided as per law the assessing officer
came to the conclusion that there was no case for addition and
passed an order under the Income Tax Act with the approval of
the Additional Commissioner. In a meeting held on 22.3.2014,
DCIT (Assessing Officer), the Additional Commissioner and Chief
Commissioner
apprised
respondent
No.2,
Member
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(Investigation) that they were of the view that no addition of
Rs.234 crores was warranted as there was no evidence to suggest
much less to prove that an accounted sale to that extent took
place in the span of 21 days from 1.9.2011 to 22.9.2011. Thus the
facts make it clear that no impropriety has been committed by
respondent No.2 and he has not directed the assessing officer to
proceed in a particular manner but rather various higher
authorities had agreed with the assessing officer and thereafter
had put up the matter for discussion with the respondent who
had also agreed with them. In the facts of the case, it is clear that
the allegation raised with respect to favour being meted out to
M/s. Flora and Fauna Housing & Land Development (P) Ltd. at
the instance of respondent No.2 has been considered by HSBC
and not at all substantiated from the material on record. As a
matter of fact, full facts have not been placed on record either by
Mr. Anil Agrawal or otherwise to make the position clear. It is
apparent that Mr. Anil Agrawal was making reckless allegations
and was guilty of suppresio veri and suggestio falsi. [Paras 73, 75
and 77][942-H; 943-A, E-H; 944-H; 945-A-C]
1.6 Another allegation against respondent No.2 was with
respect to the failure of respondent No.2 to take appropriate
action against the foreign bank account holders in HSBC Bank,
Geneva for almost 3 years. It was urged that no prompt action
was taken by respondent No.2. Since the formation of SIT the
income tax department had not filed even a single prosecution
against HSBC account holders. The allegation is not at all
substantiated. Rather his functioning has been appreciated by
the SIT and his assistance has been sought even by the Chief
Vigilance Commissioner. [Paras 78, 80][945-D-E; 947-A]
1.7 Another allegation against respondent No.2 is with
respect to the failure to make any headway, as he failed to take
action in the income-tax cases, in the 2G scam, unlike the CBI or
Enforcement Directorate filed several charge-sheets. The
averment in this regard in the petition is in the passing form and
is vague. Apart from that, no specific instance has been given in
which case there was a failure on the part of respondent No.2.
That apart respondent No.2 had made it clear that during the
tenure from 1.11.2010 to August 2012 he had taken up the case
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of Unitech Ltd. whose associates and their sister concern had
been granted licences and few other cases of telecom company
were investigated and few connected cases of telecom companies
were also under investigation for other charges. All necessary
investigation was carried out and aforesaid findings were
communicated in due time to the Assessing Officer who took
appropriate action. Cases of other telecom companies under the
jurisdiction of DGIT, Bombay, Chennai, Bengaluru etc.
Respondent No.2 as a nodal agency coordinated and made several
representations as to the action taken by the income-tax
department before a Joint Parliamentary Committee. It could not
be pointed out in which particular matter respondent No.2 was
found lacking. It was never pointed out to this Court that there
was laxity on the part of respondent No.2 when the aforesaid
matter C.A. No.10660/2010 was listed in this Court. [Para
81][947-B-F]
1.8 The allegation with respect to Radia Tapes, is that
respondent No.2 not taking action against the concerned
incumbents. Details of action which were required and could have
been taken have not been given in the petition, thus no specific
averment has been made in this regard by the petitioners. It is
apparent from the reply that respondent No.2 was DGIT
Investigation and he joined on 1.11.2010 by which time
surveillance of Ms. Nira Radia was over and some intercepts
relating to such surveillance were in public domain due to leakage
probably in May-June, 2010. When he had taken over as DGIT
(Investigation) in November 2010 actionable issues were
identified and necessary action was taken either by the Delhi
Directorate or was communicated to the Directorates for further
action. The information was duly shared with the Assessing
Officers and other law enforcing agencies such as CBI, ED etc.
The matter was before this Court in Public Interest Litigation
(PIL). None of the authorities ever found any shortcoming or
inaction on the part of respondent No.2 on this count. It was also
not urged before the Court by aforesaid PIL of 2010 whenever it
was listed. [Para 82][947-G-H; 948-A-B]
1.9 It has also been pointed out by respondent No.2 that in
the petition with respect to APAR of respondent No.2, false
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averments have been made, that adverse remarks were made by
three senior officers of CBDT. The allegation has been termed
to be baseless and unfounded and misleading. In the 36 years of
service, not even a single remark has been made in the APAR.
All the remarks had been based on record as in the form of
compendium R-2/1. There is no adverse remark in them. Thus
the petition suffers from wrong averments also. Thus, it is
apparent that against respondent No.2 unsubstantiated allegations
have been made. [Para 83][948-C-D]
1.10 Three representations/complaints were received
against respondent No. 2. The PMO had asked for details of the
allegations so as to ascertain the facts contained in the
representations filed against respondent No.2. Complaints of
respondent No.2 were placed before the Committee. Factual
inputs on opinion were received with respect to the various
aspects in representation from various agencies like CBI,
Information Bureau, Department of Revenue, Ministry of Finance
and were placed before the HPC which considered all the
allegations against all shortlisted candidates. No complaint was
received against respondent No. 3. Requisite clearances were
given by the IB with respect to respondent Nos. 2 and 3. With
respect to the allegations, separate inputs were obtained and
placed before the Committee. There was nothing adverse found.
[Para 87][951-C-E]
1.11 Each and every aspect and information had been placed
before the High Power Committee when the decision was taken.
Thus, the integrity of the decision-making process has not
impinged in this case in any manner whatsoever. Nor the decision
taken to appoint respondent No.2 as CVC, can be said to be
suffering from any illegality. The decision cannot be said to be
influenced by extraneous considerations and the choice made of
respondent No.2 cannot be said to be such which is amenable for
interference by the court in judicial review. [Para 104][955-B-C]
2.1 With respect to the appointment of respondent No.3,
that since it was alleged that on the administrative side, he was
severely indicted for fabricating/forging the APAR of Mr. Malay
Mukherjee, General Manager and was cautioned. However, his
criminal prosecution ultimately was not fructified. Thus, in view
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of the order passed in the serious background, it could not be
said that person who was accused of fabricating/forging APAR
was a person of impeccable integrity fit to hold the office of
Vigilance Commissioner of an integrity institution of this country.
Respondent No. 3 in his written explanation pointed out that in
the past there were 14 such cases when succeeding CMDs, had
submitted APAR when reviewing APAR when officers have not
worked under him. Thus no action against him was warranted.
He had not violated any guidelines. [Paras 105, 109][955-D-E;
956-F-G]
2.2 So far as fabrication and forgery are concerned, no
finding has been recorded against respondent No.3 with respect
to the APAR for 2009-2010 by any formal order on the
administrative side. Thus, his integrity is not going to be affected
in the aforesaid factual matrix. [Para 111][958-B]
2.3 There is no finding recorded against respondent No.3
either by the Chief Vigilance Commissioner or the DFS in any
manner whatsoever so as to impinge adversely upon his integrity,
necessary for such an institution of Vigilance Commission. Apart
from that, no representation was filed against respondent No.3.
However, this aspect was dealt with and was mentioned in the
report which was submitted before the HPC. Thus, there was
nothing against the integrity of respondent No.3 so as to hold
that the recommendation with respect to him was illegal and void
and entire material was placed before the HPC. Thus, no case is
made out with respect to the appointment of respondent No.3 as
Vigilance Commissioner to make interference in judicial
parameters. [Paras 111, 112][958-C-D, F]
3. Judicial determination is confined to the integrity of the
decision making process by the HPC. The difference between
judicial and merit review, the legality of decision-making process
can also be looked into. If the decision is influenced by extraneous
considerations or selection is made in breach of the statute or
rules, it can be set aside. The Government is not accountable to
the courts for the choice made but the Government is accountable
to the courts in respect of the lawfulness/legality of its decisions.
[Para 85][950-F, G]
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4. It is not for this Court to decide on the choice. Nowadays
the scenario is that such complaints cannot be taken on face value.
Even against very honest persons, allegations can be made. Those
days have gone when filing of the complaints was taken as serious
aspersions on integrity. Ideally, there should not be any serious
complaint as the filing of same raises eyebrows. As in the instant
matter, complaints have been looked into and the Court declines
to interfere. [Para 113][958-G-H]
Vineet Narain & Ors. v. Union of India & Anr. (1998) 1
SCC 226 : [1997] 6 Suppl. SCR 595; Centre for PIL
& Anr. v. Union of India & Anr. (2011) 4 SCC 1 : [2011]
4 SCR 445; K. Karunakaran v. State of Kerala (2000)
3 SCC 761 : [2000] 2 SCR 735 - referred to.
Case Law Reference
[1997] 6 Suppl. SCR 595
referred to
Para 1
[2011] 4 SCR 445
referred to
Para 1
[2000] 2 SCR 735
referred to
Para 86
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 505
of 2015.
Under Article 32 of the Constitution of India.
WITH
W.P. (C) No. 683 of 2014.
Pramod Dayal, Prashant Bhushan, Pranav Sachdeva, Ms. Neha
Rathi, Ms. Cheryl D' Souza, Advs. for the Petitioners.
K. K. Venugopal, AG, Tushar Mehta, ASG, Mrs. V. Mohana,
C. A. Sundaram, P. S. Patwalia, Sr. Advs., Ms. Madhavi Divan,
Ms. Aishwarya Bhati, Ms. Binu Tamta, B. V. Balramdas, Ms. Anil Katiyar,
Shekhar Kumar, Braj Kishore Mishra, Rajat Nair, Ms. Shradha
Deshmukh, Mukesh Kumar Maroria, G. Ramakrishna Prasad, Suyodhan
Byrapaneni, Mohd. Wasay Khan, Ms. Filza Moonis, K. V. Girish
Choudhary, Ms. Rohini Musa, Zafar Inayat, Abhishek Gupta, Apporv
Tripthi, Jagat Arora, Rajat Arora, Ms. Ritu Arora, Anuvrat Sharma,
Ms. Sushma Suri, Advs. for the Respondents.
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The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The petition has been filed by the
Common Cause (a registered Society) and others purportedly in public
interest, a prayer has been made to issue an appropriate writ quashing
the appointment of Mr. K.V. Chowdary, Central Vigilance Commissioner
(in short 'CVC') and Mr. T.M. Bhasin, Vigilance Commissioner (in short,
'VC'). The Union of India had appointed Mr. K.V. Chowdary as CVC
on 6.6.2015 and Mr. T.M. Bhasin as VC on 11.6.2015 for a period of
four years. The main ground urged to quash the appointment is that it is
illegal and void as there is violation of principles of impeccable integrity
and institutional integrity laid down in the judgments of this Court in
Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226 and
Centre for PIL & Anr. v. Union of India & Anr. (2011) 4 SCC 1.
2. In the writ petition filed by the Centre for Integrity, Governance,
and Training in Vigilance Administration and another, a prayer has been
made to direct the Union of India and/or its instrumentalities to provide
for minimum number of years of knowledge and experience in the field
of vigilance for being appointed as CVC or VC. During the pendency of
the writ application, with the permission of the court, this Court had
permitted respondent No.1 to proceed with the appointment of CVC
and VC under section 4(1) of the Central Vigilance Commission Act,
2003 (for short, "the Act") subject to the decision of the petition. The
appointments have been made and the challenge is confined to the
appointments of CVC and VC.
3. It is urged by the Common Cause Society that Central Vigilance
Commission is, in the absence of a Lokpal, India's top anti-corruption
body. The Commission is considered the apex integrity and watchdog
institution of the country. Apart from overseeing the vigilance
administration, it has also the power of superintendence over the CBI in
corruption cases and is also the designated agency for protection of the
whistle-blowers to examine their complaints. It oversees functioning of
the Central Government and its instrumentalities.
4. This Court in Vineet Narain (supra) has observed that Central
Vigilance Commission shall be given statutory status. The Selection
Committee has to select a person of impeccable integrity and the
appointment shall be made by the President. Pursuant thereto, Parliament
has enacted Central Vigilance Commission Act, 2003 and Selection
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Committee comprises of the Prime Minister, the Home Minister, and the
Leader of the Opposition.
5. In Centre for PIL (supra) this Court had quashed the
appointment of the then CVC by declaring decision of Selection
Committee to the President for appointment as non-est. It was observed
by this Court that the activity of decision making process has to ensure
that the powers are exercised for the purpose and in the manner in
which the said Act provides otherwise the recommendation has no
existence in the eyes of law. This Court directed that the legality of the
exercise of selection is subject to judicial review. All civil servants and
other persons empaneled shall be outstanding civil servants or persons
of impeccable integrity, made on rational criteria reflected by recording
vigilance and/or notings akin to reasons. Complete information with
material and data whether favourable or adverse has to be forwarded.
Nothing material or relevant should be withheld. Contemporaneous service
record, even adverse remarks, are specifically to be brought to the notice
of Selection Committee. Process of selection by the Committee has to
be fair and transparent.
6. It is averred in the petition that the absolute requirement is that
Central Vigilance Officer should have unblemished record of service.
The appointment of Mr. K.V. Chowdary, respondent No.2 as CVC has
been assailed on the basis of facts mentioned in the complaint. Prior to
that, he was the Chairperson of CBDT and Advisor to the SIT on black
money. Before his appointment, several representations were made to
the Prime Minister of India, who heads the selection panel as provided
in section 4 of the Act. As it transpired that the Government had made
up its mind to appoint respondent No.2, representations were made giving
specific reasons as to why he was not eligible and suitable for heading
the Commission. Despite representations, his appointment had been made.
Firstly, it is submitted that Mr. K.V. Chowdary had been meeting with
the then CBI Director Mr. Ranjit Sinha and had been regularly meeting
the accused in the cases investigated by the CBI in the 2G scam cases.
This Court had directed on 20.11.2015 in Civil Appeal No.10660 of 2010,
the CBI Director not to interfere in the investigation process carried out
by the CBI in the 2G scam case and to recuse himself from 2G scam
case. This Court had also observed in the judgment dated 14.5.2015 in
Writ Petition [C] No.463 of 2012 that Mr. Ranjit Sinha's meetings with
accused in coal scam were completely inappropriate, and his role in
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allegedly scuttling investigations in coal scam case needs to be
investigated.
7. It is further averred in the petition that Mr. Ranjit Sinha, Director
of CBI met Mr. K.V. Chowdary when he was probing the dealings of
and intercepted conversation of hawala dealer Mr. Moin Qureshi who
was known to Mr. Ranjit Sinha and who had met him approximately 90
times at his residence. These meetings also took place when Mr. Ranjit
Sinha/CBI was investigating "Stock Guru Scam" where senior income
tax officers were involved and the CBI was investigating the role of
respondent No.2. The CBI inquiry had found that senior income tax
officer had taken bribes for showing favours to scamsters and had also
misappropriated over Rs.40 crores. The officers who were involved
were working directly under Mr. K.V. Chowdary, respondent No.2.
8. The Income Tax Department in its report on Mr. Moin Qureshi
gave a clean chit to Mr. Sinha and CBI gave a clean chit to respondent
No.2 in Stock Guru scam. Thus, respondent No.2 Mr. K.V. Chowdary
and CBI Director, Mr. Ranjit Sinha helped each other in the investigation
being carried out by the agencies under them.
9. One Mr. Anil Kumar Agarwal had made a complaint to the
Finance Ministry on 10.6.2014 pointing out the manner in which
respondent No.2 was being shielded in Stock Guru scam. Earlier
respondent No.2 had taken credit for taking action against Stock Guru
before the scam involving income tax officers came to light. He could
not distance himself from the scam as the entire episode happened under
his watch.
10. Respondent No.2 had abused his position as Member
(Investigation), CBDT to under-assess the income of the company M/s.
Flora and Fauna Housing & Land Development Pvt. Ltd. which is
associated with infamous Mr. Ponty Chadha. The under-assessment
was to the extent of Rs.234/- crores. Mr. K.V. Chowdary followed a
procedure allegedly unknown to law by giving direction to the assessing
officer to dispose of the case in a particular manner whereas no such
direction could have been issued.
11. It is further averred in the petition that one of the members of
the Common Cause Society made the following allegations in the
representation :
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(i) that Mr. Chowdary was in charge of the investigation of illegal
account holders in foreign countries in HSBC Bank, for almost
three years and until this Court appointed the SIT on black money,
there was almost no progress in income tax investigation, and the
income tax department had not filed even a single prosecution
case against HSBC account holders.
(ii) that Mr. Chowdary was investigating the Radia tapes and did
not take any action on evidence available with him.
(iii) that he was also investigating the income tax cases in the 2G
scam and failed to take any action unlike the CBI or the ED
which filed several charge-sheets.
12. As against respondent No.3, Mr. T.M. Bhasin appointed as
VC the case set up by the petitioner is that he had been serving as the
CMD in the public sector Indian Bank from 1.4.2010 with its headquarters
in Chennai, who was indicted in a detailed inquiry by the CVC in 2013
for forging and tampering with the appraisal report of the then General
Manager of Indian Bank which is a criminal offence. One Mr. Malay
Mukherjee in this connection had complained on 11.7.2011 that his Annual
Performance Appraisal Report (APAR) has been tampered. It was found
by the Commission that APAR was mala fidely tampered and forged
and grading of 'excellent' was substituted by 'average' with a view to
destroy the career of Mr. Malay Mukherjee. It was a criminal offence
for which investigation was suggested to establish the facts. However,
another VC had stated that departmental action be taken. The then CVC
approved departmental action. On that office memorandum dated
11.12.2012 was issued to Department of Financial Services (DFS),
Government of India to take departmental action against Mr. Bhasin.
13. In response to the aforesaid, the Department of Financial
Services wrote to the Commission that departmental action may not
stand scrutiny of law. The opinion was reiterated by the then VC which
was approved by the CVC, however, Department of Financial Services
said that the matter ought to be closed and Mr. Bhasin was cautioned.
The same was approved by the Commission and was carried out by the
Government of India. It is averred that yet another important political
functionary wrote a letter to the Prime Minister on 11.6.2015 stating that
charge against Mr. Bhasin was very serious and the recommendation of
Selection Committee to appoint him must be withdrawn. Thus, Mr. Bhasin
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by no stretch of imagination can be said to have impeccable integrity or
unblemished record as per the requirement of law. Thus, the appointments
are illegal, arbitrary, in negation of rule of law and therefore in violation
of Articles 14 and 16 of the Constitution of India. It is averred that
transparency was not followed and there was no scope for public inputs.
Complaints made against respondent Nos. 2 and 3 were not duly
considered. Thus, transparency was not observed. Non-production of
serious adverse material and representations against respondent Nos. 2
and 3 would vitiate the appointment process and in case material was
produced, and despite that appointments were made, then the
appointments would be mala fide, arbitrary and illegal.
14. In the counter affidavit filed by respondent No.1 in case of
Common Cause, as per section 3(3) of the Act, for appointment to the
post of CVC as well as VC, the person must have knowledge and
experience in the matters relating to (a) vigilance, (b) policy making and
(c) administration including police administration. Therefore, fixing
minimum years of experience exclusively in any of the above fields would
be contrary to the expressed legislative intent which requires that such
person must have knowledge and experience in all the three fields. The
decision of this Court in Centre for PIL (supra) has been relied upon.
The guidelines laid down therein have been duly complied with. The
guidelines framed provided the criteria as well as the procedure to be
followed, inviting nominations, shortlisting of eligible candidates, final
selection, to be made by the Committee. The vacancies inviting
applications for the posts of CVC and VC were issued by respondent
No.1 vide O.M. dated 13.10.2014. It was uploaded on the website of
Department of Personnel & Training (DoPT) and the advertisement
published in newspapers also referred to the vacancy circular. The
process adopted by respondent No.1 included inviting applications through
advertisement from all eligible persons, thereafter scrutiny and sorting
of the applications under a welldefined criterion was done by a Committee
of Secretaries and, thereafter, the list was furnished to the Committee
as provided in section 4 of the Act. A fully transparent process had been
adopted. Office Memorandum dated 13.10.2014 has prescribed eligibility
and other requirements as under:
"Section 3(3) of the Central Vigilance Commission Act, 2003,
provides that the Central Vigilance Commissioner and the Vigilance
Commissioners shall be appointed from amongst persons -
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(a) who have been or are in an All-India Service or in any civil
service of the Union or in a civil post under the Union having
knowledge and experience in the matters relating to vigilance,
policy making and administration including police administration;
or
(b) who have held office or are holding office in a corporation
established by or under any Central Act or a Government company
owned or controlled by the Central Government and persons who
have expertise and experience in finance including insurance and
banking, law, vigilance, and investigations :
Provided that, from amongst the Central Vigilance
Commissioner and the Vigilance Commissioners, not more than
two persons shall belong to the category of persons referred
to either in clause (a) or clause (b).
In case of persons falling under section 3(3)(a) of the Act as
above, such persons, preferably, have held or is holding the
post of a Secretary to the Government of India or any equivalent
post thereto under the Central Government.
In case of persons falling under the first part of section 3(3)
(b) of the Act as above, the person must have held or is holding
the position of Chairman/Managing Director/Chief Executive
Officer of a Schedule. "A" Central Public Sector Enterprise
and has served as a whole time Director on the Board for a
period of at least 3 years.
In respect of persons who have expertise and experience in
finance, including insurance and banking, law, vigilance and
investigation and falling under the second part of section 3(3)
(b) of the Act as above, such persons must have acquired
eminence and have outstanding achievement in the said fields(s)
provided that such persons who are in employment in a private
company must have held or is holding the position of Managing
Director/CEO, as a Whole-Time Director on the Board of the
Company for a period of at least three years.
All the applicants should be of outstanding merit and impeccable
integrity and should have knowledge and at least 25 years of
experience in the relevant field(s).
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The applicants should not be more than 62 years of age as on
1st January 2015 so that the persons to be considered for
selection will get at least 3 years tenure as a Central Vigilance
Commissioner or the Vigilance Commissioner."
15. Experience of 25 years has been prescribed in the relevant
field(s). Advertisements were published in three leading newspapers,
i.e., Times of India, The Hindu, and Dainik Bhaskar (Hindi Daily) in all
their editions in India on 14.10.2014 inviting applications for the aforesaid
posts. The last date of receiving the applications was 5.11.2014. It was
also uploaded on the website 'www.persmin.nic.in' by DoPT. The
publication has been certified as per the communication received from
the Directorate of Advertising and Visual Publicity (DAVP), Ministry of
Information & Broadcasting, it has been placed on record. Multiple
channels of communication were utilised to give wide publicity to the
advertisement.
16. Pursuant to the advertisement, total 132 applications were
received for the said posts, out of which 120 were received by the cutoff date. Following is the data of the applications received :
The shortlisting was done by a Committee comprising of the Cabinet
Secretary, the Secretary (Department of Financial Services) and the
Secretary (Personnel). In the meeting dated 9.4.2015, the Committee
went through the relevant record, scrutinized all the applications and
examined the experience of each candidate and shortlisted a panel of 12
names for the post of CVC and 10 names for the post of VC for placing
before Selection Committee for consideration.
S.No.
Under Category of
the CVC Act, 2003
No. of
applications
received for
CVC post
No. of
applications
received for
VC post
No. of
applications
received after
5.11.2014
1.
3(3)(a)
48
43
08
2.
3(3) (b) category - I
05
19
02
3.
3(3) (b) category - II
03
02
02

56
64
02
Total
132
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17.It is further contended by respondent No.1 that the first meeting
of the Committee headed by the Prime Minister was held on 23.5.2015
which was attended by the Home Minister and the leader of Congress
Legislative Party. The Committee went through agenda containing the
details, notwithstanding the shortlisting of details of all the 132 applicants
and decided to obtain further information of certain candidates.
18. On 23.5.2015, a communication was received from the PMO
containing extracts of all allegations from a representation made by one
of the members of the Common Cause vide his letter dated 20.5.2015
and requesting for inputs on the said allegations against Mr. K.V.
Chowdary. The same was sent on 25.5.2015 to CBI and the Department
of Revenue for their inputs. The PMO also requested the IB on 23.5.2015
to provide their inputs. The following replies were received :
"(i) The reply of CBI was received on 29.05.2015 and is part of
the record that was placed before the Committee.
(ii) Two replies were received from the Department of Revenue
on 27.05.2015 and is part of the record that was placed before
the Committee.
(iii) Inputs from IB were received in PMO on 26.05.2015 and in
DoPT on 28.05.2015 and is part of the record that was placed
before the Committee.
(iv) A reply on ACR was received on 29.05.2015 and is part of
the record that was placed before the Committee."
19. The Agenda note for the second meeting to be held on 1.6.2015
was circulated on 27.5.2015 which included the details of all complaints
against various candidates including the closed complaints. With respect
to Mr. K.V. Chowdary, it was mentioned in the agenda note that other
inputs will be placed before the Committee during the meeting as some
inputs were awaited. Accordingly, additional inputs with the gist of the
complaints regarding Mr. K.V. Chowdary were placed before the
Committee in the second meeting held on 1.6.2015. The gist with
annexures at correspondence containing plethora of documents of File
No.399/15/2014-AVD-III was made available. Not only the complaints/
documents but a brief summary of the complaints and the inputs obtained
from various agencies including the gist of the note for Mr. K.V.
Chowdary were also placed before the Committee. The gist included
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the details and the inputs received from various agencies like CBI, IB,
and Department of Revenue. On 1.6.2015 a letter from the Department
of Revenue was received stating that no adverse remarks have been
found in the Appraisal Performance Report of available ACRs. of Mr.
K.V. Chowdary for the period from 1978 to 2013-14. Letter dated
26.5.2015 of another public functionary regarding Mr. K.V. Chowdary
was also placed before the Committee.
20. It is further contended that the details of the complaints
including the closed complaints against Mr. T.M. Bhasin along with inputs
in relation to the same were also part of the agenda at para 3.7 and
Annexure E which was placed before the Committee. The Committee
after taking into consideration all the material placed before it recorded
thus:
"The representations received from Shri Prashant Bhushan, Anil
Kumar Agrawal and Shri Ram Jethmalani relating to Shri K.V.
Chowdary had been sent earlier to Department of Revenue,
Ministry of Finance, Intelligence Bureau, and the CBI for their
comments. The above letters and comments of the agencies
concerned were placed before the Committee. Another complaint
received by the CBI relates to the case of M/s. Flora and Fauna
Housing and Land Development Pvt. Ltd. about an unaccounted
income of Rs.234 crores. This was also a part of the complaint
made by Shri Prashant Bhushan and based on the investigation
inputs received, the matter was found to be unsubstantiated.
Having considered the contents of the letters and the comments
thereon, the Committee was of the view that the allegations were
not substantiated."
21. The file was sent to the Hon. President of India through
MOS(PP) and then by the PMO on 5.6.2015 containing the agenda as
well as the gist of the complaints which was received from the President's
Secretariat on 8.6.2015 along with the Warrants of Appointment and
order of oath. After obtaining their consent, the Warrants of Appointment
were handed over personally to both Mr. K.V.Chowdary and Mr.
T.M.Bhasin and the order on oath was also sent to CVC on 8.6.2015.
The decision taken by the Committee to appoint them was unanimous.
Respondent Nos.2 and 3 were found to be eligible. Allegations were not
found substantiated. The Committee had taken note of inputs received
from various investigation and intelligence agencies and after satisfying
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themselves the allegations were found untenable and that they were the
persons of impeccable integrity and satisfied the requirement of law,
had recommended the appointments. There was no procedural irregularity
or illegality. The present petition is in no manner public interest litigation.
Complaints were baseless. There was no illegality or arbitrariness in
their appointments.
22. In the counter affidavit filed by respondent No.2, Mr. K.V.
Chowdary, it is contended that petition is based upon hearsay and letters
written by third parties. The decision in P.J.