Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO.54 OF 2019
COMMON CAUSE & ANR. … PETITIONER(S)
VERSUS
UNION OF INDIA & ANR. … RESPONDENTS
J U D G M E N T
ARUN MISHRA, J.
1. The writ petition has been filed under Article 32 of the Constitution
of India seeking issuance of a writ of mandamus to direct Union of India
to appoint a regular Director of CBI forthwith by following the procedure
laid down in section 4A of the Delhi Special Police Establishment Act,
1946. Prayer has also been made to quash the order dated 10.1.2019
issued by Union of India appointing Mr. Nageshwar Rao as the interim
Director of CBI. A further prayer has been made to issue appropriate
writ or direction to the Union of India to ensure that all records of
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.02.19
17:23:22 IST
Reason:
deliberations and rational criteria of shortlisting and selection of the
Director, CBI be properly recorded and made available to citizens in
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consonance with the provisions of the RTI Act. A further prayer has
been made to direct Union of India to ensure transparency in
shortlisting, selection and appointment process of Director, CBI.
2. It is averred in the petition that the Government of India has failed
to appoint Director of CBI as per section 4A of the Delhi Special Police
Establishment Act, 1946, and has instead appointed Mr. Nageshwar
Rao as the interim Director of CBI in an arbitrary and illegal manner.
3. It is further averred that petitioner no.1, Common Cause is a
registered society and petition has been filed in bona fide public
interest. However, the average annual income of the society in the last 3
financial years is approximately Rs.1.17 crores. Petitioner No.2 is an
RTI activist and had filed applications under the Right to Information
Act, 2005 seeking information about the process of appointment of the
new Director of CBI in terms of the process adopted for shortlisting
candidates, if any, minutes of meetings of the search and selection
committee, none of which were provided to her in violation of the RTI
Act. The average annual income of petitioner No.2 for the last three
financial years is about Rs.5 lakhs. The petitioners have no
private/oblique motive. Petitioners have not made any representation to
the respondent in this regard because of extreme urgency of the matter
in issue except for the letter written by Common Cause on 9.1.2019 for
initiating the process of appointment of regular Director, CBI.
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4. It is also averred that CBI is the premier investigation agency in the
country. It investigates corruptionrelated offenses connected with the
Central Government and also cases connected with State Government
entities. This Court has entrusted important cases of corruption and
violation of human rights to CBI for investigation. The Director of CBI is
the head of the organisation. He supervises all the work and is
responsible for the constitution of investigating teams for probing cases.
This Court and the Parliament have made determined efforts to
enhance the functional autonomy of CBI Director and limit the extent of
executive discretion in the matter of appointment of this key
functionary.
5. In the case of Vineet Narain & Ors. v. Union of India & Anr . (1998) 1
SCC 226, this Court issued directions to insulate the CBI from
extraneous influence. This Court directed that there should be a
selection committee to identify a panel of names for appointment of
Director, CBI and thereafter the final selection is to be made by the
Appointments Committee of Cabinet (ACC). CBI Director would have a
fixed tenure of 2 years. Said direction was issued by this Court to
ensure that adhocism in the appointment and functioning of CBI
Director is eliminated and independence is maintained.
6. Accordingly, in 2003 amendments were made to the DSEP Act
following Vineet Narain ’s case (supra). The provisions were further
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amended in 2013 to the DSPE Act through the Lokpal and Lokayuktas
Act to further insulate the selection committee from government
influence. The CBI Director is to be appointed by the Central
Government on the recommendations of a committee comprising (a) the
Prime MinisterChairperson, (b) the Leader of Opposition (Member) and
(c) the Chief Justice of India or any Judge of Supreme Court nominated
by him. The Act was further amended in November 2014 to provide for
the Leader of the single largest Opposition Party in Lok Sabha to be a
member of the selection committee in case no Leader of Opposition is
recognised.
7. Section 4A of the Act provides for constitution of the committee.
Same is extracted hereunder:
“4A. Committee for appointment of Director –
(1)
The Central Government shall appoint the Director on the
recommendation of the Committee consisting of –
(a) the Prime Minister – Chairperson.
(b) the Leader of Opposition 12 recognised as such in the House of
the People or where there is no such Leader of Opposition,
then, the Leader of the single largest Opposition Party in that
House – Member
(c) the Chief Justice of India or Judge of the Supreme Court
nominated by him – Member.
(2) No appointment of a Director shall be invalid merely by reason
of any vacancy or absence of a Member in the Committee.
(3)
The Committee shall recommend a panel of officers –
(a) on the basis of seniority, integrity, and experience in the
investigation of anticorruption cases; and
(b) chosen from amongst officers belonging to the Indian Police
Service constituted under the AllIndia Services Act, 1951 (61
of 1951)
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for being considered for appointment as the Director.”
8. This Court in C.A. No.4303/2002 has clarified that as regards
seniority mentioned in section 4A of the Delhi Special Police
Establishment Act, 1946, ordinarily all the IPS officers of the
seniormost four batches in the service on the date of retirement of CBI
Director, irrespective of their empanelment, shall be eligible for
consideration for appointment to the post of Director, CBI.
9. Challenge has been made to the appointment of Mr. Nageshwar Rao
as interim Director of CBI on the ground that on 23.10.2018, 2 separate
orders were issued by the Central Vigilance Commission and the Govt.
of India. The then Director of CBI Mr. Alok Verma was divested of his
powers and vide another order issued by the Government of India Mr.
Nageshwar Rao was made Director, CBI as an interim measure. The
appointment of Mr. Nageshwar Rao as interim Director was not
recommended by the selection committee. The Government bypassed
the High Powered Selection Committee and in complete contravention of
the established procedure unilaterally made the interim appointment.
The order dated 23.10.2018 regarding the appointment of Mr.
Nageshwar Rao was challenged in this Court in W.P. [C] No.1315/2018.
Vide judgment dated 8.1.2019 this Court quashed the order regarding
the appointment of Mr. Nageshwar Rao and relating to Mr. Alok Verma
this Court observed :
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“37. There is yet another issue of significance that arises from
the weighty arguments advances in the course of the long
debate that has taken place. This is with regard to the
application of Section 14, 15 and 16 of the General Clauses
Act, 1897 so as to confer power in the Central Government to
pass the impugned orders including the order of appointment
of an acting Director of the CBI. The preceding discussions
and our views on the true and correct meaning of the
provisions contained in Sections 4A & 4B of the DSPE Act
leaves us convinced that the aforesaid provisions of the General
Clauses Act will have no application to the present case in view
of the clear and apparent intention to the contrary that
unequivocally flows from the aforesaid provisions of the DSPE
Act.
10. In Writ Petition (C) No.1315 of 2018, this Court granted the
following reliefs:
“39. Consequently, in the light of our views as expressed above
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we set aside the following orders dated 23 October 2018.
(i)
of the CVC divesting the powers, functions, duties, supervisory
role etc. of Shri Alok Kumar Verma as Director, CBI.
(ii) of the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel & Training
divesting Shri Alok Kumar Verma, Director, CBI of his
functions, powers, duties and supervisory role with immediate
effect and until further orders.
(iii)of the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel & Training
by which one Shri M. Nageshwar Rao, IPS, Joint Director, CBI
has been asked to look after the duties and functions of
Director, CBI with immediate effect.”
It is averred in the petition that the appointment of Mr.Nageshwar
Rao as interim CBI Director was not made on the recommendations of
the High Powered Selection Committee. The committee was completely
bypassed and had no role in the appointment of Mr. Nageshwar Rao
thereby rendering the appointment as illegal as it is in violation of the
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procedure for appointment of Director, CBI. The order dated 10.1.2019
states that the appointments committee of the Cabinet has approved
the appointment of Mr. Nageshwar Rao "as per the earlier
arrangement". As the said arrangement had been quashed by this Court
as it was made in violation of procedure for CBI Director as defined in
the DSPE Act, Government still invoked its earlier order which stood
quashed to once again make appointment of CBI Director, even though
it is not the competent authority and does not have any authority to
make appointment, without following the due procedure laid down in
the DSPE Act. The recommendation of High Powered Selection
Committee was necessary, thus, the Government has acted completely
in an arbitrary manner and in contravention of DSPE Act to appoint Mr.
Nageshwar Rao.
11. It is further submitted that there is a lack of transparency in the
appointment of CBI Director. This Court has given various directions to
ensure transparency in the process of shortlisting, selection and
appointment of functionaries of various independent bodies like the
Central Vigilance Commission and Information Commissions to prevent
the appointment process being undermined behind a cloak of secrecy.
12. It is further averred that this Court in Anjali Bhardwaj & Ors. v.
Union of India vide its order dated 13.12.2018 directed the Central
Government to proactively disclose the details of shortlisted candidates
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and the criteria followed. Transparency has to be maintained as
observed in (2013) 10 SCC 359. Reliance
Union of India v. Namit Sharma
has also been placed on Centre for PIL & Anr. v. Union of India & Anr .
W.P. [C] Nos.348 & 355/2010. So far as the appointment of Director
CBI is concerned, the Government of India has failed to follow proper
procedure for selection and appointment. In December 2018 as reported
by the media the Government initiated the process of appointment of
Director, CBI as the tenure of Mr. Alok Verma was set to finish on
31.1.2019. Petitioner No.2 filed applications under the RTI Act seeking
information about meetings of the Selection Committee, including the
date of the meetings, copy of the agenda of meetings, copy of Minutes of
meetings, details of the persons who attended each meeting, details of
the procedure adopted by the Government to shortlist candidates for
consideration by the Selection Committee etc. but no such information
had been disclosed. No such copy of shortlisted candidate was provided.
Government has responded summarising the directions of this Court in
C.A. No.4303/2002 regarding clarification of seniority amongst all the
IPS officers of seniormost 4 batches in service on the date of retirement
of the Director, CBI which were needed to be considered for filling up
the post and giving information about the composition of the Selection
Committee under the DSPE Act. Request dated 19.12.2018 (P5) has
been placed on record. On 9.1.2019 prayer was made to the Prime
Minister and the Leader of the largest party in Opposition to initiate the
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process for appointment of regular CBI Director hence the petition has
been filed.
13. After several recusals by different Benches, ultimately, the case
was taken up on 1.2.2019 by this Court on which date the arguments
were heard at some length. It was pointed out by Mr. K.K. Venugopal,
learned Attorney General for India that High Powered Committee was
scheduled to meet on the same day in connection with the appointment
of Director of CBI. The case was adjourned to 6.2.2019. However,
during hearing on 1.2.2019, the Minutes of the High Powered Selection
Committee were placed before the court and it was made clear by the
Attorney General for India that the said Committee by majority has
decided to authorise Government of India to appoint an interim Director
while passing a resolution and the counsel for the petitioner was told by
the Court of such resolution having been passed by the Committee. On
that, he had conceded that the ground that Committee under Section
4A has not authorised appointment does not survive. Following is the
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operative part of the resolution dated 9 /10 January, 2019:
“(i) Shri Alok Kumar Verma be transferred from the post of
Director, CBI and given a suitable assignment for the residual
period of his present term ending on 31.01.2019.
(ii) the Central Government may post a suitable officer to
look after the duties of the Director, CBI till the appointment of
a new Director, CBI.”
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14. It is apparent from the decision of the committee under Section 4A
that the Government was authorised to post a suitable officer as interim
Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus,
the submission raised in the petition on behalf of the petitioners that
the HPSC has not authorised the appointment of interim Director is
totally misconceived and petitioners have failed to verify the aforesaid
facts and the petition has been filed in undue haste without verifying
the fact whether the appointment has been authorised by the
Committee for appointment of Director constituted under section 4A of
the DSPE Act.
15. Unfortunately after what transpired in the court on 1.2.2019
certain tweets were made by learned counsel appearing on behalf of
Common Cause and another with respect to which the Attorney General
has filed contempt petition as well as the Union of India. It was tweeted
that the Minutes of the said meeting had been forged, the Court was
misled and there had been no authorisation by the Committee
constituted under section 4A about appointment of interim Director. As
to the tweets made, the contempt petitions have been filed in which
notice has been issued. Effect of the tweets during the pendency of the
writ petition is the subject matter of the contempt petition and the same
is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as
such we refrain to comment in the petition on the submission as to
tweets.
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16. It is clear from the resolution passed by the Committee on 9/10
January, 2019 that the appointment of interim Director had been
authorised by the Committee under section 4A. Thus, it cannot be said
to be unauthorised and illegal in any manner whatsoever. The
submission raised that the Selection Committee had not authorised the
appointment of interim Director is fallacious on the face of the record
and is misconceived in view of the said resolution. We need not go into
the larger question whether in such exigency it was necessary to have
such a resolution for the appointment of Interim Director by Selection
Committee as that does not arise for decision in this case as Committee
has passed the aforesaid resolution.
17. With respect to RTI application that was filed by petitioner No.2, it
had been replied on 19.12.2018 as follows :
“Please refer to your online RTI application bearing
registration No. DOP&T/R/2018/56336 dated 5.12.2018
information under RTI Act, 2005.
2. It is informed that as per this Department’s Executive Order
No.230/14/99DSPE dated 8.7.2004 issued in pursuance of
Hon’ble Supreme Court’s directions dated 20.4.2004 given in
CA No. 4303/2002, all the IPS officers of the senior most 4
batches in service on the date of retirement of the (incumbent)
Director, CBI are needed to be considered for selection to the
post of Director, CBI. It is further informed that as per Section
4(A)(1) of the DSPE Act, 1946, as amended by the Lokpal and
Lokayuktas Act, 2013 (No.1 of 2014) (copy enclosed), the
Central Government appoints the Director, CBI on the
recommendation of the Committee consisting of members as
prescribed for the purpose under the ibid section.
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3. As per Section 19 of RTI Act, 2005, an appeal against the
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above decision would lie before the 1 Appellate Authority Ms.
Ashwini Dattatraya Thakre, Deputy Secretary (AVDII), North
Block, New Delhi within 30 days of receipt of this letter.”
18. Petitioner had filed yet another application on 25.12.2018 in which
it was prayed that what was the process being adopted by the
Government to shortlist of the candidates, a copy of shortlisting
prepared be disclosed, following reply was sent on 2.1.2019 :
“Please refer to your online RTI application bearing
registration No. DOP&T/R/2018/56394 &
DOP&T/R/2018/56397 dated 25.12.2018 information under
RTI Act, 2005.
2. It is informed that as per this Department’s Executive Order
No.230/14/99DSPE dated 8.7.2004 issued in pursuance of
Hon’ble Supreme Court’s directions dated 20.4.2004 given in
CA No. 4303/2002, amongst all the IPS officers of the senior
most 4 batches in service on the date of retirement of the
(incumbent) Director, CBI are needed to be considered for
filling up the post of new Director, CBI. The process of
selection of new Director in CBI has not attained finality.
3. As per Section 19 of RTI Act, 2005, an appeal against the
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above decision would lie before the 1 Appellate Authority Ms.
Ashwini Dattatraya Thakre, Deputy Secretary (AVDII), North
Block, New Delhi within 30 days of receipt of this letter.”
19. Petitioner No.2 was advised by the aforesaid communication in
case she was aggrieved, to take recourse to appeal before the appellate
authority under the RTI Act. It appears that the petitioner has not filed
any appeal/s. In view of letters, we find no ground to interfere in the
matter on the said ground too.
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20. On the one hand the petitioner asked on 10.1.2019 for an
appointment of regular Director and that meeting be convened at the
earliest to appoint regular Director. We find that since the regular
Director has been appointed the main prayer of the petitioner stands
satisfied and there is absolutely no justification to continue with this
writ petition in the aforesaid circumstances. In case the due process
has not been followed in the appointment, it is always open to any
incumbent, if so advised, to question the appointment in accordance
with law but not in the routine manner and undue haste as shown in
the petition.
21. Accordingly, we find no ground to interfere with this writ petition
and the same is hereby dismissed. Parties are left to bear their own
costs as incurred.
…………………….…….J.
(Arun Mishra)
New Delhi; ……………………………J.
February 19, 2019. (Navin Sinha )