PUBLISHED FROM THE TRIBUNE
Here are excerpts from the Supreme Court judgement in the CVC case. The ruling was given by a Bench consisting of Chief Justice SH Kapadia, Justice KS Panicker Radhakrishnan and Justice Swatanter Kumar:
THE government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. On September 3, 2010, the High Powered Committee (HPC), duly constituted under the proviso to Section 4(1) of the 2003 Act, had recommended the name of Shri P.J. Thomas for appointment to the post of Central Vigilance Commissioner. The validity of this recommendation falls for judicial scrutiny in this case.
If a duty is cast under the proviso to Section 4(1) on the HPC to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.
Vigilance is an integral part of all government institutions. Anti-corruption measures are the responsibility of the Central Government. In Australia, US, UK and Canada there exists a concept of integrity institutions. In our opinion, CVC is an integrity institution.
In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate.
The HPC has to take into consideration the values, independence and impartiality of the institution. It has to consider the institutional competence and take an informed decision keeping in mind the vital aspects indicated by the purpose and policy of the 2003 Act. Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation.
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 be “public interest” which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof.
In the present case, the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the bio-data of the empanelled candidates. None of these authorities have looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC.
Moreover, we are surprised to find that between 2000 and 2004 the notings of DoPT dated June 26, 2000, January 18, 2001, June 20, 2003, February 24, 2004, October 18, 2004 and November 2, 2004 have all observed that penalty proceedings may be initiated against Shri P.J. Thomas. Whether the State or the Centre should initiate such proceedings or the Centre was not relevant. What is relevant is that such notings were not considered in juxtaposition with the clearance of CVC granted on October 6, 2008.
Even in the brief submitted to the HPC by DoPT, there is no reference to the said notings between 2000 and 2004.
Even in the CV of Shri P.J. Thomas, there is no reference to the earlier notings of DoPT recommending initiation of penalty proceedings against Shri P.J. Thomas. Therefore, even on personal integrity, the HPC has not considered the relevant material.
The system of 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 Parliament and administer the country through various statutory bodies like CVC which is empowered to perform the function of vigilance administration.
Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law. Institution is more important than an individual. In the present case, the HPC has failed to take this test into consideration.
For the above reasons, it is declared that the recommendation made by the HPC on September 3, 2010 is non-est in law. We reiterate that 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 when impugned under the judicial review jurisdiction.
Guidelines of the court
The 2003 Act came into force on and from September 11, 2003. In the present case, we find non-compliance of some of the provisions of the 2003 Act. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that:
(i) In our judgement we have held that 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 of the High Powered Committee. As in the present 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.
(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 notings.
(v) It shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.
(vi) The empanelling authority, while forwarding the names of the empanelled officers/ persons, 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 officer 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 empanelled officers.
For the above reasons, it is declared that the recommendation dated September 3, 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
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