Common Cause vs Union Of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 1088 OF 2017

Common Cause .... Petitioner(s)

Versus

Union of India and Others .... Respondent(s)

ORDER

R.K. Agrawal, J.

1) By means of the present public interest litigation (PIL),

the petitioner, Common Cause, a Registered Society, through

its President Shri Kamal Kant Jaswal, questions the validity of

the order dated 22.10.2017 issued by Secretariat of the

Appointments Committee of the Cabinet, Department of

Personnel and Training (DoPT) appointing Shri Rakesh

Asthana – Respondent No. 2 herein as the Special Director,

Central Bureau of Investigation (CBI) on the ground that the

appointment has been made illegally, arbitrarily, mala fide and Signature Not Verified ASHA SUNDRIYAL Date: 2017.11.28 in violation of the principles of impeccable and institutional Digitally signed by

16:22:55 IST Reason:

integrity.

1 2) We have heard learned Shri Prashant Bhushan, learned

counsel for the petitioner and Mr. K.K. Venugopal, learned

Attorney General appearing for the Union of India.

3) Shri Prashant Bhushan, learned counsel contended that

this Court in Vineet Narain and Others vs. Union of India

and Another (1998) 1 SCC 226 has laid down the procedure

for appointment of Director, CBI which is as under:-

“58.6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.”

4) Learned counsel further contended that the CBI has been

established under the Delhi Special Police Establishment Act,

1946 (in short ‘the DSPE Act’) and to give statutory effects to

the directions given in Vineet Narain (supra), the DSPE Act

was amended in 2003 vide Central Vigilance Commission Act,

2 2003 to provide that the Director, CBI and officers above the

post of Superintendent of Police shall be appointed by the

Central Government on the recommendations of the Central

Vigilance Commissioner, the Vigilance Commissioners and two

Secretaries to the Government of India.

5) The DSPE Act was further amended by the Lokpal and

Lokayuktas Act, 2013 to provide for a mechanism for the

appointment of Director, CBI as well as for the appointment of

officers to the post above the Superintendent of Police. As in

the present petition, the selection and appointment of the

Special Director, CBI is under challenge and not the selection

and appointment of the Director, CBI, only Section 4C, as

substituted by the Act of 2013, has to be considered. Section

4C of the DSPE Act provides for the procedure for appointment

of Superintendent of Police and above reads as under:-

“4C. Appointment for posts of Superintendent of Police and above extension and curtailment of their tenure, etc. — (1) The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment, on the recommendation of a Committee consisting of:-

3 a) The Central Vigilance Commissioner – Chairperson b) Vigilance Commissioners - Members

c) Secretary to the Government of India in charge of the Ministry of Home - Member, and

d) Secretary to the Government of India in charge of the Department of Personnel - Member

Provided that the Committee shall consult the Director before submitting its recommendation to the Central Government.

(2) On receipt of the recommendation under sub-Section (1), the Central Government shall pass such orders as it thinks fit to give effect to the said recommendation.”

6) Thus, the appointment on the post of Superintendent of

Police and above has to be made by the Selection Committee

in consultation with the Director, CBI. Shri Prashant

Bhushan, relying upon the news reports dated 22.10.2017 in

the India Today and reported on 23.10.2017 in ‘The Pioneer’

and the ‘The Hindu’ as also the newspaper report dated

24.10.2017 published in ‘The Pioneer’ submitted that no

decision was taken by the Selection Committee in its meeting

held on 21.10.2017 regarding the appointment of Shri Rakesh

Asthana – Respondent No. 2 on the post of Special Director,

CBI, and therefore, the order dated 22.10.2017 issued by the

4 Appointments Committee of the Cabinet (ACC) is wholly illegal

and contrary to law.

7) Learned counsel for the petitioner, relying upon the

diaries and other papers seized in the raid conducted in the

premises of Sterling Biotech and Sandesara Group of

Companies where on some pages of the diary, the name of

Shri Rakesh Asthana – Respondent No. 2 herein finds place as

also in the FIR dated 30.08.2017 filed by the CBI, in the

column of details of known/suspected/unknown accused with

full particulars, a mention has been made for “other unknown

public servant and private persons”, contended that in any

event Respondent No. 2 could not have been recommended for

appointment as Special Director, CBI as the matter is under

investigation.

8) He relied upon a 9-Judges Bench decision of this Court

in Supreme Court Advocates-on-Record Association and

Others vs. Union of India (1993) 4 SCC 441 to submit that

consultation is to be effective and primacy has to be given to

the views of the persons consulted.

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9) Learned counsel for the petitioner further relied upon a

decision of this Court in Centre for PIL and Another vs.

Union of India and Another (2011) 4 SCC 1 in support of his

submission that institution is more important than an

individual and the decision to recommend has got to be an

informed decision keeping in mind that the institution has to

perform an important function.

10) Learned counsel further contended that the son of

Respondent No. 2, viz., Ankush Asthana has worked for 2

years, 11 months with M/s Sterling Biotech as Assistant

Manager (papers and diaries of which Company had been

seized) and the cocktail party of the wedding of the daughter of

Respondent No. 2 was held in the farm house of M/s

Sandesaran Group of Companies. He also relied upon a news

reported in the Indian Express dated 21.11.2017 wherein a

Professor of the University of London had expressed doubt and

concern about the working of the Vigilance Commission

concerning CBI’s Additional Director’s recent effort to win

promotion to bring home the point that the appointment of

6 Shri Rakesh Asthana – Respondent No. 2 as Special Director

could not have been made at all.

11) Learned Attorney General for India placed before us the

Minutes of the Selection Committee Meeting held on

21.10.2017 in the Office of the Central Vigilance

Commissioner and submitted that the Selection Committee

had considered the confidential letter dated 21.10.2017

submitted by the Director, CBI and had discussed the same in

the meeting. The Selection Committee had given good reasons

for not accepting the contents of the letter submitted by the

Director, CBI and recommended Shri Rakesh Asthana for

appointment as Special Director, CBI. He further submitted

that the CBI itself had moved the proposal on 06.07.2017 for

appointment of Shri Rakesh Asthana as a suitable candidate

to hold the post of Special Director, CBI. According to him,

Shri Rakesh Asthana was holding the post of Additional

Director, CBI before being appointed as Special Director, CBI

and had been supervising functions of 11 Zones, viz., STF

Zone, MDMA Zone, Delhi Zone, Lucknow Zone, Patna Zone,

EoZ-II Zone, Mumbai, EoZ-III Zone, Kolkata Zone, North East

7 Zone, Chennai Zone & Chandigarh Zone. In the above

capacity, he is supervising the investigation/trial of a number

of scam cases including Augusta Westland Case, Ambulance

Scam Case, Kingfisher Cases, Hassan Ali Khan Case, Moin

Qureshi Case, J.P. Singh Bribery Case, Paramount Airways

Case, Coal Scam Cases, AHD and Bitumen Scam Cases of

Bihar and Jharkhand. He is also supervising a number of

Special Crime cases which were registered on the orders of

Courts or on the request of State Governments besides cases

against Ministers/officials of Delhi Government. He thus

submitted that no fault can be found in the recommendations

made by the Selection Committee. Respondent No. 1 had

rightly accepted the recommendation for appointment of Shri

Rakesh Asthana as Special Director, CBI.

12) We have given our thoughtful consideration to the

various pleas raised by learned counsel for the parties.

13) There cannot be any doubt that if the Statute provides for

consultation with any person before making recommendation

for appointment to any post, consultation with that person has

to be made. The question of giving primacy to the opinion

8 expressed by the person with whom the consultation has to be

made depends upon various factors. If there is no Selection

Committee and the appointing authority is required to consult

with some other Constitutional/Statutory authority then the

question of giving primacy to the opinion expressed by the

person with whom the consultation is to be made exists.

14) However, in cases, where a Selection Committee has been

constituted which consists of high officials and consultation

has to be made with another person of the Department for

which recommendation for appointment is to be made, in that

event, the consultation is only a process of discussion which

has to be taken into consideration while making

recommendation by the Selection Committee. It cannot be

said to have a primacy.

15) In the Minutes of the Meeting of the Selection Committee

held on 21.10.2017, the Selection Committee had discussed

the note submitted by the Director, CBI and also discussed

the same with him as would be clear from the Minutes

reproduced hereinbelow:-

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“Item No. II: Induction of IPS officers as Special Director, CBI.

The Agenda papers have been considered. The Director CBI has furnished a Secret/Confidential letter ID No. 30/2017/VC(CVC) 152/1552 dated 21.10.2017 in the meeting, enclosing an unsigned note on Sterling Biotech Ltd. and related entities. It is mentioned by the Director, CBI that the entries in the note refer, inter alia, to one Shri Rakesh Asthana. The Committee considered the note and the matter was also discussed with the Director, CBI. Keeping in view that there is no finding in these papers that the person mentioned therein is the same person under consideration for appointment and there is nothing about the veracity of the contents of the document and the further fact that the CBI itself moved the present proposal on 06.07.2017 wherein it has been categorically mentioned that Shri Rakesh Asthana IPS (GJ:1984) is suitable to hold the post of Special Director, CBI and no further verified material has been brought on record, the Committee decided to recommend him for appointment as Special Director, CBI. The Committee has also kept in view the fact that the Vigilance Commission does not take cognizance of complaints received just on the verge of appointments or promotions unless they are proved misconducts. The Committee has also noted the decisions of the Courts in respect of such documents.”

16) From a perusal of the aforesaid Minutes, we find as

under:-

(i) The Director, CBI had furnished a secret/confidential

letter dated 21.10.2017 enclosing an unsigned note on M/s

Sterling Biotech Ltd. and related entities and that the entries

in the note referred, inter alia, to one Shri Rakesh Asthana.

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(ii) The Committee had considered the note and the matter

was also discussed with the Director, CBI.

(iii) The Committee found that there are no findings in the

papers that the person mentioned therein is the same person

under consideration for appointment and there is nothing

about the veracity of the contents of the document.

(iv) The Committee further found the fact that the CBI itself

moved the present proposal on 06.07.2017 categorically

mentioning that Shri Rakesh Asthana IPS (GJ:1984) is

suitable to hold the post of Special Director, CBI.

(v) The Committee also held that no further verified material

has been brought on record and the Committee decided to

recommend the name of Shri Rakesh Asthana for appointment

as Special Director, CBI.

(vi) The Committee has also kept in view the fact that the

Vigilance Commission does not take cognizance of complaints

received just on the verge of appointments or promotions

unless they are proven misconducts.

(vii) The decision taken by the Selection Committee was

unanimous.

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17) Further, this Court, in Mahesh Chandra Gupta vs.

Union of India and Others (2009) 8 SCC 273 has highlighted

the fact that there is vital difference between judicial review

and merit review. Once there is consultation, the content of

that consultation is beyond the scope of judicial review though

lack of effective consultation could fall within the scope of

judicial review.

18) We cannot question the decision taken by the Selection

Committee which is unanimous and before taking the

decision, the Director, CBI, had participated in the discussions

and it is based on relevant materials and considerations.

Further, even in the FIR filed by the CBI, the name of Shri

Rakesh Asthana has not been mentioned at all. Thus, lodging

of FIR will not come in the way of considering Shri Rakesh

Asthana for the post of Special Director, after taking into

consideration his service record and work and experience.

From the Minutes of the Meeting (MoM) of the Selection

Committee, we find that the news items reported in the print

and electronic media that no decision was taken with respect

to the appointment on the post of Special Director, CBI in the

12 meeting of the Selection Committee held on 21.10.2017 are

factually incorrect. Likewise, the statement of the Professor of

the University of London reported in the Indian Express

appears to be based on the newspaper reports which have

been found to be factually incorrect, and therefore, it has no

substance.

19) In view of the foregoing discussion, we are of the

considered opinion that the appointment of Shri Rakesh

Asthana – Respondent No. 2 herein to the post of Special

Director, CBI does not suffer from any illegality. The writ

petition fails and is dismissed.

...…………………………………J. (R.K. AGRAWAL)

…………….………………………J. (ABHAY MANOHAR SAPRE)

NEW DELHI;

NOVEMBER 28, 2017.

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