2011 (3) TMI 1561 - SC - Indian Laws

Whether 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 respondent No. 2 on the basis of the pending case which had been found to be without any substance?

Issues Involved:
1. Legality of the appointment of Shri P.J. Thomas as Central Vigilance Commissioner.
2. Judicial review of the High Powered Committee's (HPC) recommendation.
3. Institutional integrity of the Central Vigilance Commission (CVC).
4. Validity of the recommendation dated 3rd September, 2010.
5. Applicability of the writ of quo warranto.
6. President's discretion in the appointment of the Central Vigilance Commissioner.
7. Requirement of unanimity or consensus in the HPC's recommendation.
8. Guidelines and directions for future appointments under the 2003 Act.

Detailed Analysis:

1. Legality of the Appointment of Shri P.J. Thomas:
The primary issue was the legality of Shri P.J. Thomas's appointment as Central Vigilance Commissioner under Section 4(1) of the Central Vigilance Commission Act, 2003. The Court focused on the integrity of the decision-making process and the institutional integrity of the CVC. Shri P.J. Thomas was involved in the "Palmolein case," which raised concerns about his suitability for the position.

2. Judicial Review of the HPC's Recommendation:
The Court emphasized that while the government is not accountable to the courts for policy decisions, it is accountable for the legality of such decisions. The HPC's recommendation dated 3rd September, 2010, was scrutinized for its adherence to the statutory duties under the 2003 Act. The Court noted that the HPC must consider institutional integrity and not just the personal integrity of the candidate.

3. Institutional Integrity of the CVC:
The Court highlighted that the CVC is an "integrity institution" and the HPC must ensure that the appointment does not adversely affect the institutional competence and functioning of the CVC. The Court emphasized the importance of maintaining the independence and impartiality of the CVC.

4. Validity of the Recommendation Dated 3rd September, 2010:
The Court found that the HPC's recommendation was based on the clearance given by the CVC on 6th October, 2008, and the fact that Shri P.J. Thomas held various high-ranking positions. However, the HPC failed to consider the pending criminal proceedings and previous notings recommending disciplinary action against Shri P.J. Thomas. The Court declared the recommendation non-est in law.

5. Applicability of the Writ of Quo Warranto:
The Court held that a writ of quo warranto is applicable when a person holds a public office without legal authority. The Court found that the appointment of Shri P.J. Thomas was in contravention of the provisions of the 2003 Act and issued a writ of quo warranto.

6. President's Discretion in the Appointment of the Central Vigilance Commissioner:
The Court clarified that the President acts on the advice of the Council of Ministers under Article 74 of the Constitution. The recommendation of the HPC, once accepted by the Prime Minister, is binding on the President. The Court rejected the argument that the President has discretion in the appointment.

7. Requirement of Unanimity or Consensus in the HPC's Recommendation:
The Court held that the recommendation of the HPC does not need to be unanimous. The majority decision of the HPC is sufficient, and the dissenting member must provide reasons for the dissent. The majority must also provide reasons for overruling the dissent to ensure transparency and fairness in the decision-making process.

8. Guidelines and Directions for Future Appointments Under the 2003 Act:
The Court provided several guidelines for future appointments:
- The zone of consideration should include persons from All-India Services, civil services of the Union, and those with experience in finance, law, vigilance, and investigations.
- The empanelment should be based on rational criteria, and the empanelling authority must record reasons for the selection.
- Complete information, including adverse remarks, should be provided to the Selection Committee.
- The Selection Committee should adopt a fair and transparent process.

Conclusion:
The Court quashed the appointment of Shri P.J. Thomas as Central Vigilance Commissioner and allowed the writ petitions with no order as to costs. The Court emphasized the importance of institutional integrity and provided guidelines for future appointments to ensure transparency and adherence to the statutory provisions of the 2003 Act.

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