2011 (3) TMI 608 - SC - Indian Laws

Legality of the appointment of Central Vigilance Commissioner under Section 4(1) - Comptroller and Auditor General ( CAG ) in its report dated 2nd February 1994 for the year ended 31st March 1993 took exception to the procedure adopted for import of Palmolein by the State Government - DoPT empanelled three officers vide its note dated 1st September 2010. Vide the same note along with the Brief the matter was put up to the HPC for selecting one candidate out of the empanelled officers for the post of Central Vigilance Commissioner - learned Attorney General in his usual fairness stated at the Bar that only the Curriculum Vitae of each of the empanelled candidates stood annexed to the agenda for the meeting of the HPC - It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality - No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service - it is declared that the recommendation dated 3rd September 2010 of the High Powered Committee recommending the name of Shri P.J. Thomas as Central Vigilance Commissioner under the proviso to Section 4(1) of the 2003 Act is non-est in law and consequently the impugned appointment of Shri P.J. Thomas as Central Vigilance Commissioner is quashed - The writ petitions are allowed

Issues Involved:
1. Legality of the appointment of Shri P.J. Thomas as Central Vigilance Commissioner.
2. The distinction between judicial review and merit review.
3. The relevance of institutional integrity in the appointment process.
4. The validity of the recommendation dated 3rd September, 2010.
5. Invocability of the writ of quo warranto.
6. The President's discretion in the appointment of the Central Vigilance Commissioner.
7. The requirement of unanimity or consensus under Section 4(2) of the 2003 Act.
8. Guidelines and directions for future appointments.

Detailed Analysis:

1. Legality of the Appointment of Shri P.J. Thomas:
The judgment strictly confines itself to the legality of the recommendation dated 3rd September, 2010, and the appointment based thereon. The appointment of Shri P.J. Thomas as Central Vigilance Commissioner is challenged due to his involvement in the Palmolein case and the pending criminal case against him. The High Powered Committee (HPC) recommended his name without considering the institutional integrity and the pending criminal proceedings, which is crucial for the role of Central Vigilance Commissioner.

2. Distinction Between Judicial Review and Merit Review:
The Court emphasized the difference between judicial review and merit review, stating that while the government is not accountable to the courts for policy decisions, it is accountable for the legality of such decisions. The judicial review in this case is confined to ensuring that the HPC performed its statutory duty under the 2003 Act, keeping in mind the purpose and policy of the Act.

3. Relevance of Institutional Integrity:
The Court highlighted that the HPC must consider institutional integrity while making recommendations. The integrity of the decision-making process and the potential impact on the functioning of the Central Vigilance Commission (CVC) should be paramount. The Court noted that the HPC failed to consider the institutional integrity and the pending criminal proceedings against Shri P.J. Thomas.

4. Validity of the Recommendation Dated 3rd September, 2010:
The Court found that the recommendation by the HPC was based on the clearance given by the CVC on 6th October, 2008, and the appointments of Shri P.J. Thomas to various positions. However, the HPC did not consider the pending Palmolein case, the notings recommending disciplinary proceedings, and the Supreme Court's judgment emphasizing probity in high offices. Therefore, the recommendation was declared non-est in law.

5. Invocability 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. In this case, the recommendation and appointment of Shri P.J. Thomas were in contravention of the 2003 Act, making the writ maintainable. The Court also noted that a declaratory relief was sought, and the recommendation of the HPC was in violation of the Act.

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, becomes binding on the President. The judgment in Bhuri Nath's case, which dealt with the Governor's discretion under a different statutory scheme, was distinguished from the present case.

7. Requirement of Unanimity or Consensus Under Section 4(2) of the 2003 Act:
The Court rejected the argument that the recommendation of the HPC must be unanimous. It held that the majority decision of the HPC is binding, and the presence of the Leader of Opposition ensures bipartisanship. A veto power to one member would make the Act unworkable. The Court emphasized the need for reasons to be recorded in case of dissent.

8. Guidelines and Directions for Future Appointments:
The Court issued several guidelines to ensure transparency and fairness in future appointments:
- The zone of consideration should include persons from various backgrounds as per Section 3(3) of the 2003 Act.
- All empanelled persons must be of impeccable integrity.
- The empanelment process should be rational and transparent, with reasons recorded.
- Complete information, both favorable and adverse, should be provided to the Selection Committee.
- The Selection Committee should adopt a fair and transparent process.

Conclusion:
The recommendation dated 3rd September, 2010, by the HPC was declared non-est in law, and the appointment of Shri P.J. Thomas as Central Vigilance Commissioner was quashed. The writ petitions were allowed with no order as to costs.

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