Delhi High Court
Manohar Lal Sharma Advocate vs The Principal Secretary, Prime ... on 13 August, 2014
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.08.2014
+ WP(C) 4653/2013
N GOPALASWAMI & ORS ... Petitioners
versus
THE UNION OF INDIA & ANR ... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Shanti Bhushan, Senior Advocate with Mr Prashant
Bhushan and Mr Pranav Sachdeva
For the Respondent No.1 : Mr G. E. Vahanvati, AG with Mr Paras Kuhad and
Mr Rajeeve Mehra, ASG with Mr Jatan Singh,
Mr Sumeet Pushkarna, Gaurav Sharma, Mr Soayib
Qureshi, Mr Kartikey Mahajan, Mr Devdutt Kamat,
Mr Anoopam Prasad, Ms Tara Narula, Mr Nizam Pasha
and Ms Sania Husaini
For the Respondent No.2 : Mr Amit Sibal with Mr Amrinder Singh
AND
+ WP(C) 4619/2013
MANOHAR LAL SHARMA ADVOCATE ... Petitioner
versus
THE PRINCIPAL SECRETARY,
PRIME MINISTER OFFICE AND OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioner : Petitioner-in-person with Ms Suman
For the Respondent Nos.1 & 2 : Mr Paras Kuhad and Mr Rajeeve Mehra, ASGs with
Mr Jatan Singh, Mr Sumeet Pushkarna, Gaurav Sharma,
Mr Soayib Qureshi,
For the Respondent No.3 : Mr Amit Sibal with Mr Amrinder Singh
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU
WP(C) 4653/2013 & 4619/2013 Page 1 of 74
JUDGMENT
BADAR DURREZ AHMED, J
1. These writ petitions challenge the appointment of respondent No. 2
as the Comptroller and Auditor-General (CAG). They also seek a writ,
direction or order commanding the Union of India to frame a transparent
selection procedure based on definite criteria and to constitute a broad based
non-partisan selection committee, which, after calling for applications and
nominations, would recommend to the President of India, the most suitable
person for appointment as the CAG. Both these petitions raise common
issues and questions and are, therefore, being disposed of together.
I. The challenge and the petitioners' submissions
2. The appointment of the respondent No. 2 as the CAG has been
challenged on two grounds. First of all, his appointment is said to have
violated the principles of institutional integrity as contemplated in the
Supreme Court decisions - (i) Centre for PIL v. Union of India : (2011) 4
SCC 1 (known as the ‗CVC case'); and (ii) State of Punjab v. Salil Sabhlok:
(2013) 5 SCC 1 (known as ‗the Punjab PSC case'). It is contended on behalf
of the petitioners and, in particular, the petitioner in WP(C) 4653/2013 that
the respondent No. 2 was involved in defence procurements in his capacity
as the Director General of Defence Acquisitions and as the audits conducted
by the CAG involve a large part of defence purchases, the respondent No. 2
would have an apparent bias in respect of purchases in which the respondent
No. 2 had participated in some capacity or the other. This, according to the
petitioners, would violate the principle of institutional integrity. The second
ground for challenging the appointment of the respondent No. 2 as the CAG
is that the appointment was done in an arbitrary manner which lacked
transparency. There was no specific criteria for selecting a person suitable to
be appointed as the CAG and there was no short-listing committee. Reliance
was, once again, placed on the CVC case (supra) and the Punjab PSC case
(supra). Reliance was also placed on the Supreme Court decision in E.P.
Royappa v. State of Tamil Nadu and Another.: (1974) 4 SCC 3 for the
proposition that the government cannot be arbitrary in any of its actions.
3. Chapter V of the Constitution of India deals with the Comptroller and
Auditor-General of India. It comprises of four Articles (148-151). Article
148 stipulates that there shall be a Comptroller and Auditor-General of
India, who shall be appointed by the President by warrant under his hand
and seal and shall only be removed from office in like manner and on the
like grounds as a Judge of the Supreme Court. Article 149 spells out the
duties and powers of the CAG. Article 150 specifies the forms of accounts
of the Union and of the States. Article 151, inter alia, provides that the
reports of the CAG, relating to the accounts of the Union, shall be submitted
to the President, who shall cause them to be laid before each House of
Parliament. The said Articles 148-151 are set out herein below:-
―148. Comptroller and Auditor-General of India.--(1) There
shall be a Comptroller and Auditor-General of India who shall
be appointed by the President by warrant under his hand and
seal and shall only be removed from office in like manner and
on the like grounds as a Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and
Auditor-General of India shall, before he enters upon his office,
make and subscribe before the President, or some person
appointed in that behalf by him, an oath or affirmation
according to the form set out for the purpose in the Third
Schedule.
(3) The salary and other conditions of service of the
Comptroller and Auditor-General shall be such as may be
determined by Parliament by law and, until they are so
determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-
General nor his rights in respect of leave of absence, pension or
age of retirement shall be varied to his disadvantage after his
appointment.
(4) The Comptroller and Auditor-General shall not be
eligible for further office either under the Government of India
or under the Government of any State after he has ceased to
hold his office.
(5) Subject to the provisions of this Constitution and of any
law made by Parliament, the conditions of service of persons
serving in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor-General
shall be such as may be prescribed by rules made by the
President after consultation with the Comptroller and Auditor-
General.
(6) The administrative expenses of the office of the
Comptroller and Auditor-General, including all salaries,
allowances and pensions payable to or in respect of persons
serving in that office, shall be charged upon the Consolidated
Fund of India.
149. Duties and powers of the Comptroller and Auditor-
General.-- The Comptroller and Auditor-General shall perform
such duties and exercise such powers in relation to the accounts
of the Union and of the States and of any other authority or
body as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, shall
perform such duties and exercise such powers in relation to the
accounts of the Union and of the States as were conferred on or
exercisable by the Auditor-General of India immediately before
the commencement of this Constitution in relation to the
accounts of the Dominion of India and of the Provinces
respectively.
150. Form of accounts of the Union and of the States.--The
accounts of the Union and of the States shall be kept in such
form as the President may, on the advice of the Comptroller and
Auditor-General of India, prescribe.
151. Audit reports.--(1) The reports of the Comptroller and
Auditor-General of India relating to the accounts of the Union
shall be submitted to the President, who shall cause them to be
laid before each House of Parliament.
(2) The reports of the Comptroller and Auditor-General of India
relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before
the Legislature of the State.‖
4. It will be seen from the above provisions of the Constitution that the
salary and other conditions of service of the CAG shall be such as may be
determined by Parliament by law and, until so determined, shall be as
specified in the Second Schedule to the Constitution [see Article 148(3)].
The CAG is also required to perform such duties and exercise such powers
in relation to the accounts of the Union and of the States as were conferred
on or exercisable by the Auditor-General of India immediately before the
commencement of the Constitution in relation to the accounts of the
Dominion of India and of the Provinces, respectively (see Article 149).
Subsequently, Parliament has enacted the Comptroller and Auditor-
General's (Duties, Powers and Conditions of Service) Act, 1971 (hereinafter
referred to as ‗the CAG Act') in order to determine the conditions of service
of the Comptroller and Auditor-General and to prescribe his duties and
powers and for other matters connected therewith or incidental thereto. It
may be pertinent to note at this juncture that the CAG Act does not prescribe
any method or manner of appointment of the CAG.
5. The learned counsel for the petitioners referred to a request for
information under the Right to Information Act, 2005 made by virtue of an
application dated 21.02.2013, wherein information was, inter alia, sought as
to whether there was any approved system or procedure for
selection/appointment of the Comptroller and Auditor-General. The answer
to this question was in the affirmative. Information was sought as to
whether the system or procedure is formally laid down and well documented
system? Further supplementary questions were also raised in this
connection. The answers were provided by the First Appellate Authority
under the RTI Act, 2005 by virtue of an order dated 16.05.2013. It was
stated thereunder that by virtue of the powers vested in the President of India
under Article 148(1) of the Constitution of India, the President, through
warrant under his hand and seal, appoints the Comptroller and Auditor-
General of India. After the issuance of the Presidential warrant, the Budget
Division of the Department of Economic Affairs issues the Gazette
Notification for the appointment of the CAG. It was further stated that the
system of appointment is established in terms of past conventions and
practices. This entails that, on a note moved by the Ministry of Finance, the
Government makes recommendations to the President of India for the
appointment of the CAG. The authorities in the Government, which are
involved in the system of selection of the CAG, are stated to be the Ministry
of Finance, Cabinet Secretariat, the Prime Minister and the President of
India. It was also stated that there is no specified eligibility criteria/zone of
consideration etc. inasmuch as the position of the CAG is open to both,
‗service' as well as others.
6. The learned counsel for the petitioners referred to paragraph 7 of the
counter-affidavit filed on behalf of the respondent No.1, wherein it is
provided that the CAG is selected from amongst civil servants who have rich
and varied experience in public administration by a broad-based time-tested
and established procedure. It is further stated in the said counter-affidavit
that the CAGs have been appointed following the established procedures and
processes which have evolved over the last several decades. Under the said
procedure, the Cabinet Secretariat, which is headed by the Cabinet
Secretary, who is the senior most civil servant, having knowledge about the
competence and integrity of the civil servants in the Government, sends the
list of shortlisted names which have been approved by the Finance Minister
to the Prime Minister for his consideration. The Prime Minister thereafter
considers the said shortlisted names and recommends one name to the
President of India for his approval. After the name is approved by the
President, the CAG is appointed under the warrant and seal of the President
of India.
7. Along with the said counter-affidavit, the respondent No.1 has
annexed a list of the CAGs, their tenures and the post last held before taking
over as CAG. The said list is re-produced herein below:-
―LIST OF CAGs, TENURE, ETC
Sr.No. Service Post last held
before taking
over as CAG
1. V. Narahari Rao IAAS Not Available
(15.08.1948 -14.08.1954)
2. A. K. Chanda IAAS Not Available
(15.08.1954 -14.08.1960)
3. A. K. Roy IAAS Not Available
(15.08.1960 -14.08.1966)
4. S. Ranganathan ICS Not Available
(15.08.1966 -26.03.1972)
5. A. Bakshi IAAS Not Available
(27.03.1972 -26.03.1978)
6. Gian Prakash IAS Defence Secretary
(2.03.1978 -26.03.1984)
7. T.N. Chaturvedi IAS Home Secretary
(27.03.1984 -26.03.1990)
8. C.G. Somiah IAS Home
(27.03.1990 -11.03.1996) Secretary, CVC
9. V.K. Shunglu IAS Secretary, Industries &
(15.03.1996 -14.03.2002) Industrial Promotion
10. V.N. Kaul IAS Secretary, Petroleum
(15.03.2002 -06.01.2008)
11. Vinod Rai IAS Secretary, Financial
(07.01.2008 -22.05.2013) Services
12. S.K. Sharma IAS Defence Secretary
(23.05.2013 - till date)
8. Referring to the above list, the learned counsel for the petitioners
submitted that all the previous CAGs upto 1978 (except one) were from the
Indian Audit and Accounts Service (IAAS) and after 1978, all the CAGs
have been from the IAS (Indian Administrative Service). It was submitted
on behalf of the petitioners that the appointment of the CAG must satisfy
certain minimum criteria. The minimum criteria, according to the
petitioners, was that the person, who is to be appointed as the CAG, must
have knowledge of audits and he must not have any conflict of interest.
According to the petitioners, the respondent No. 2 is disqualified on both
counts. According to them, the respondent No. 2 does not have any
knowledge of audits and accounts and there is a clear conflict of interest
inasmuch as he has been involved in many of the defence procurements in
respect of which he would be conducting audits. It is not even possible for
the CAG to recuse inasmuch as the CAG is not part of a multiple-member
body and, therefore, in those matters, in which he may have earlier been
involved, the CAG would have to sign the audit reports as he has no other
option.
9. It was contended on behalf of the petitioners that prior to his
appointment as the CAG, the respondent No. 2 had served in key positions
in the Ministry of Defence and was involved in the decision making process
in respect of purchases running into ―tens of lacs of crores‖ of rupees. It is
stated that the respondent No. 2 was the Joint Secretary in the Ministry of
Defence from 2003-2007. Thereafter, in 2007, after serving a brief stint as
an Additional Secretary, the respondent No. 2 was posted as the Director
General of Acquisitions in charge of all defence purchases, where he served
till September, 2010. Thereafter, the respondent No. 2 briefly served as an
Officer on Special Duty and was subsequently, appointed as the Defence
Secretary in July, 2011, in which position he remained till he was appointed
as the CAG. During this entire period, there were several major defence
purchases, including the deal with an Anglo-Italian firm Agusta Westland
for helicopters for the Indian Air Force. Several of these deals have come
under the scanner and the earlier CAG had made serious observations with
regard to the Defence Ministry's procurement policy in the compliance
Audit-Defence Services (Air Force and Navy) report in November, 2012. It
is in the backdrop of these allegations that it has been contended on behalf of
the petitioners that the respondent No. 2 would have a conflict of interest
while preparing the audit reports in respect of the defence purchases made
during the period in which he was in some way or the other involved with
the same.
10. A reference was made to a representation submitted to the President
of India on 20.03.2013 by the Forum of Retired Officers of the Indian Audit
and Accounts Service (IAAS) on the subject of appointment of the CAG. In
that representation the said Forum submitted that there was a need for an
open, transparent, institutionalized selection mechanism for the post of CAG
similar to the arrangements that exist for the National Human Rights
Commission and the Central Vigilance Commission. The representation
also suggested that, other things being equal, the choice should be of an
officer from the Indian Audit and Accounts Service (IAAS) and, in the
absence of a suitable officer from such service, an officer from the IAS or
other source could be selected.
11. The learned counsel for the petitioners, as pointed out above, placed
reliance on the Supreme Court decision in the CVC case (supra) stressing
the importance of the concept of ―institutional integrity‖. The decision of
the Supreme Court in the case of the Punjab PSC case (supra) was also
relied upon for the very same concept of ―institutional integrity‖ as also the
issue of conflict of interest. Parallels were sought to be drawn between the
appointment of the CAG on the one hand and the appointment of the Central
Vigilance Commissioner and the Chairman of the Punjab Public Service
Commissioner on the other, which were in issue in the CVC case (supra)
and the Punjab PSC case (supra), respectively. The next decision referred
to was that of Namit Sharma v. Union of India: (2013) 1 SCC 745, which
is known as the ―CIC case‖ which stressed on the requirement of
transparency in the appointments to the Central Information Commission
under the Right to Information Act, 2005. As pointed out above, the
decision in Royappa's case (supra) was also referred to, to stress the
importance of there being no room for arbitrariness in any action of the
Government. On the aspect of bias, the decisions of the Supreme Court in
Manak Lal v. Dr. Prem Chand: AIR 1957 SC 425 and Ranjit Thakur v.
Union of India and Others: AIR 1987 SC 2386 were referred. It was
contended that although these two cases related to judicial/quasi-judicial
proceedings, the same principles would apply in the present case also.
Lastly, the decision in the case of Bhakra Beas Management Board v.
Krishan Kumar Vij and Another: (2010) 8 SCC 701 was relied upon by the
learned counsel for the petitioners in support of their contention that mere
dismissal of a Special Leave Petition at a preliminary stage did not constitute
a binding precedent. This case was referred to in the backdrop of the fact
that earlier Special Leave Petitions filed on the very same subject matter as
is sought to be raised in the present writ petitions had been dismissed by the
Supreme Court at the preliminary stage.
II. The Attorney General's reply on behalf of Union of India
12. The learned Attorney General appearing on behalf of the respondent
No.1 in WP(C) 4653/2013 submitted that the writ petitions filed by the
petitioners were not even maintainable and were liable to be dismissed on
this ground alone. A reference was made to a writ petition [WP(C)
115/1996 - Common Cause v. Union of India] filed in the Supreme Court.
The prayer made in that writ petition, inter alia, was to the following effect:-
―to direct the Government to evolve policy, including
guidelines prescribing the requisite qualification/ experience in
the matter of appointment to the office of the Comptroller and
Auditor-General of India with the approval of this Hon'ble
Court and direct the Government to follow the same.‖
That writ petition was rejected by the Supreme Court by an order dated
26.02.1996. The learned Attorney General further pointed out that another
writ petition being WP(C) No. 618/2007 was filed before the Supreme Court
by the Public Cause Research Foundation. In that writ petition, prayers
similar to the writ petition filed by Common Cause were made. It was, inter
alia, prayed that a writ of mandamus or any other appropriate writ, order or
direction be issued calling upon the respondents to evolve a policy including
guidelines as to the requisite qualifications/experience in the matter of
appointment to the office of the Comptroller and Auditor-General of India.
It was also prayed that a writ, order or direction be issued setting out a mode
of selection through a wide based independent manner as in the case of
several other high offices. That petition [WP(C) 618/2007] was dismissed as
withdrawn by the Supreme Court by virtue of its order dated 14.07.2008. It
was pointed out that the only difference between the prayers in the two
petitions was that in the earlier petition the prayer sought was that the policy
had to have the approval of the Supreme Court, whereas in the second
petition [WP(C) 618/2007] this aspect was missing. Prayer (b) of
WP(C) 4653/2013, which is now under consideration by this Court, seeks
the issuance of a writ of mandamus or any other appropriate writ or direction
to the Union of India for framing ―a transparent selection procedure based on
definite criteria and for the constitution of broad based non-partisan selection
committee‖.
13. In this backdrop, it was contended by the learned Attorney General
that the prayers in the present petitions are nothing but an attempt to
resurrect the prayers in the petitions which were dismissed by the Supreme
Court by virtue of the orders referred to above. It was submitted that in the
wake of such dismissals, the present petitions needed to be summarily
rejected. It was further contended on behalf of the respondent No.1 that
WP(C) 115/1996, which had been filed under Article 32 of the Constitution
of India, sought the direction of the Supreme Court with regard to
prescribing criteria and guidelines as to the qualifications and experience of
the incumbent to the important constitutional position of the CAG. The
second petition filed by the Public Cause Research Foundation made similar
averments for prescribing appropriate criteria and guidelines in regard to the
qualifications and experience of the incumbent of the important
constitutional position of the CAG. The learned Attorney General pointed
out that the averments and submissions made in the present petitions and
particularly in WP(C) 4653/2013, were virtual reproductions of the
averments and submissions made in WP(C) 618/2007. The learned Attorney
General also submitted a chart, which we need not refer to in detail for the
sake of brevity, which indicated congruence of the averments made in
WP(C) 618/2007 and the present WP(C) 4653/2013. The learned Attorney
General submitted that the earlier petitions, which were dismissed by the
Supreme Court, as well as the present petitions, have a common thread apart
from having near identical averments and that in this backdrop, the ratio of
the decision in Bar Council of India v. Union of India: (2012) 8 SCC 243
would be applicable. In that decision, the Supreme Court held that it is
against public policy and well defined principles of judicial discretion to
entertain or to hear petitions relating to the same subject matter where the
matter was heard and dismissed on an earlier occasion. He submitted that,
since the Supreme Court had dismissed similar petitions, the present
petitions were also liable to be dismissed by this Court.
14. The learned Attorney General further submitted that the prayer
seeking the setting out of a definite criteria and constitution of a broad-based
non-partisan selection committee is contrary to the constitutional scheme
itself. According to the learned Attorney General, Article 148 of the
Constitution implies that it is the President who has to appoint the CAG with
the aid of the Council of Ministers. It was submitted by the learned Attorney
General that the constituent assembly rejected the proposal for fixing
qualifications of the CAG. It was submitted that in the course of the
constituent assembly debates, a notice for introduction of a new Article was
moved by one of the members to the following effect:-
―124-A The Auditor-General shall be appointed from
among persons qualified as Registered Accountants or
holding any other equivalent qualifications recognized as
such, and having not less than ten years practice as such
Auditors.‖
This proposal was rejected by the constituent assembly and Shri T. T.
Krishnamachari, while opposing the proposed amendment, expressed the
view that the CAG is not an accountant per se and he had a number of duties
to perform and, therefore, he would necessarily have to have a
comprehensive knowledge of the entire administration. The relevant
excerpts of Shri Krishnamachari's address are as under:-
―Mr. President, Sir, I must say that Professor Shah's
amendment is an original one and quite in conformity with
ideas prevalent in the commercial world but I am afraid it is out
of tune completely with existing practice in the matter of the
appointment of the Auditor-General in this country and
elsewhere. Actually the man who is an Auditor-General is not
an accountant per se. He has a number of other duties to
perform and in so functioning he has got to have knowledge of
the entire administration and I think the present method of
appointment of Auditors-General in India is perhaps the best.
We had some very good Auditors-General who were
administrators and who had been in the Finance Department
and who have functioned as Accountants-General in various
places and who had held other important responsible positions,
so that it is not merely a question of arithmetic or accounting
knowledge that is necessary but a comprehensive knowledge of
the entire administration. From that point of view I think the
House will readily concede that the view taken by Professor
Shah, however, plausible, is extremely narrow. A person who
has got the qualification of only Registered Accountant and
nothing else, which will probably be the case if you rule out
administrative experience, will not suit as an Auditor-General.‖
15. The learned Attorney General further submitted that while
WP(C) 618/2007, which was filed before the Supreme Court, referred to the
above debate, the present petitions and in particular WP(C) 4653/2013, did
not allude to this aspect and yet an argument was raised that the CAG must
have audit experience. The learned Attorney General also submitted that the
President appoints Governors of States by virtue of the power vested in him
under Article 155 of the Constitution. The said Article provides that the
Governor of a State shall be appointed by the President by warrant under his
hand and seal. This is virtually identical to Article 148(1) which empowers
the President to appoint the CAG by warrant under his seal. While the
Governor of a State holds office during the pleasure of the President in terms
of Article 156(1) of the Constitution, the CAG can only be removed from
office in like manner and on the like grounds as a Judge of the Supreme
Court. Article 124(4) stipulates that a Judge of the Supreme Court shall not
be removed from his office except by an order of the President passed after
an address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two-thirds of
the members of that House present and voting which has been presented to
the President in the same session for such removal on the ground of proved
misbehaviour or incapacity. It was submitted that while the manner of
removal of the CAG is different from that of Governors of States and akin to
that of the judges of the Supreme Court, the manner of appointment of the
CAG is similar to that of Governors. And, there cannot be any fixed
qualification or criteria for an incumbent of the high office of CAG. It was
submitted that the constituent assembly debates were relevant material in
order to understand the intent of the framers of the Constitution. In this
connection, it was submitted that the Supreme Court in several decisions had
relied upon the constituent assembly debates for the purposes of interpreting
the provisions of the Constitution. Some of the cases where this was done
were:-
(i) A. K. Roy v. Union of India: (1982) 1 SCC 271;
(ii) Special Reference No. 1/2002: (2002) 8 SCC 237;
(iii) State of Punjab v. Devans Modern Breweries Limited: (2004)
11 SCC 26;
(iv) S. R. Chaudhuri v. State of Punjab: (2001) 7 SCC 126; and
(v) Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others:
(2007) 3 SCC 184
It was contended that when the framers of the Constitution had deliberately
and consciously omitted to circumscribe the eligibility requirement, such a
requirement could not be read into the Constitution and if such an exercise
was to be undertaken, it would amount to altering the basic feature of the
Constitution. As such, the Court could not prescribe or direct the
prescription of an eligibility requirement for the office of the CAG.
16. The learned Attorney General further contended that the prayer
seeking the constitution of a broad-based non-partisan selection committee,
if granted, would imply the alteration of Article 148 of the Constitution
itself. This would be so because the President would only be nominally
vested with the authority to make an appointment and the entire selection
process would be effectively taken away from the executive and vested in a
so-called ―non-partisan selection committee‖. It was submitted that as held
by a Bench of seven Judges of the Supreme Court in Shamsher Singh v.
State of Punjab: (1974) 2 SCC 831, the President has to act on the aid and
advice of the Council of Ministers as prescribed in Article 74 of the
Constitution. The Supreme Court held that the President acts on the aid and
advice of the Council of Ministers with the Prime Minister as the head in all
matters which vests in the executive whether those functions are executive
or legislative in character. It was further observed in the said decision that
the President does not exercise the executive functions personally. As
pointed out by Justice Krishna Iyer, speaking for himself and Bhagwati, J.,
in a concurring opinion in Shamsher's case, the justification for vesting of
such powers in the Council of Ministers is that the Council of Ministers is
responsible to Parliament.
17. It was further submitted by the learned Attorney General that the
prayer made for replacement of the executive by a broad based non-partisan
selection committee was not only contrary to Article 148 but also ran
against the doctrine of separation of powers which is a basic feature of the
Constitution. It was submitted that the powers of appointment were
specifically given to the executive, which, in turn, would be responsible to
Parliament. A reference was made to the Supreme Court decision in
Minerva Mills Limited v. Union of India: (1980) 3 SCC 625, wherein the
Supreme Court observed that it was a fundamental principle of the
constitutional scheme that every organ of the State, every authority under
the Constitution, derived its power from the Constitution and had to act
within the limits of such powers. Again, in Bhim Singh v. Union of India:
(2010) 5 SCC 538, the Supreme Court observed that the concept of
separation of powers, even though not found in any particular constitutional
provision, was inherent in the polity which the Constitution had adopted. It
was also observed that the aim of separation of powers was to achieve the
maximum extent of accountability of each branch of the Government. It
was contended that neither the executive nor Parliament is empowered to
displace the provisions of Article 148 particularly because Parliament under
Article 148(3) has not been empowered to legislate or set out an eligibility
criteria or a particular process of selection. Parliament has only been
empowered to legislate on the salary and other conditions of service of the
CAG. In exercise of this power, the said CAG Act of 1971 had been
enacted. That Act, does not and could not contain any provision relating to
the appointment of the CAG. It was further submitted that Article 148 does
not envisage calling of applications or advertisements. It was submitted
that in high level and constitutional appointments, advertisements and
calling of applications was not at all required. Support was taken from the
Supreme Court decision in B. S. Minhas v. Indian Statistical Institute:
(1983) 4 SCC 582, wherein the Supreme Court observed as under:-
―25. ......Of course, we do not wish to suggest for a moment
that appointment to every post must be made only after
advertising or publicising the vacancy. That would not be right,
for there are quite a few posts at the top level which cannot be
and should not be advertised or publicised, because they are
posts for which there should be no lobbying nor should any
applications be allowed to be entertained. Examples of such
posts may be found in the post of Commander of Armed
Forces or the Chief Justice or the Judges of the Supreme Court
or the High Courts.‖
18. The learned Attorney General submitted that the reliance placed by
the petitioners on the CVC case (supra) was misplaced. It was submitted
that insofar as the appellant in the CVC case (supra) was concerned,
Parliament had, by virtue of Section 4 of the CVC Act, prescribed the
constitution of a selection committee comprising of the Prime Minister, the
Minister of Home Affairs and the Leader of Opposition in the House of the
People. There is no such prescription in the case of appointment of the
CAG. Therefore, the decision in the CVC case (supra) would not apply to
the present petitions. Insofar as the Punjab PSC case (supra) is concerned,
it was submitted that a Full Bench of the High Court had prescribed a
procedure to be followed for appointment of the Chairman and other
Members of the State Public Service Commission. The Supreme Court
found fault with this aspect of the judgment of the High Court and held that
the High Court could not, under Article 226 of the Constitution, usurp the
constitutional power of the Government and lay down a procedure for
appointment of the Chairman and other Members of the Public Service
Commission. The Supreme Court in the Punjab PSC case (supra) in
paragraph 39 had observed as under:-
39. ........A reading of Article 316 of the Constitution would
show that it confers power on the Governor of the State to
appoint the Chairman and other Members of a Public Service
Commission. It has been held by this Court in Mohinder
Singh Gill and Anr. v. The Chief Election Commissioner,
New Delhi and Ors.: 1978 (1) SCC 405 that an authority has
implied powers to make available and carry into effect powers
expressly conferred on it. Thus, under Article 316 of the
Constitution, the Governor of a State has not only the express
power of appointing the Chairman and other Members of
Public Service Commission but also the implied powers to lay
down the procedure for appointment of Chairman and Members
of the Public Service Commission and the High Court cannot
under Article 226 of the Constitution usurp this constitutional
power of the Government and lay down the procedure for
appointment of the Chairman and other Members of the Public
Service Commission. The Full Bench of the High Court,
therefore, could not have laid down the procedure for
appointment of the Chairman and Members of the Punjab
Public Service Commission and the Haryana Public Service
Commission by the impugned judgment dated 17.08.2011‖
(underlining added)
The Supreme Court further held as under:-
―Having held that the Full Bench of the High Court has in its
judgment dated 17.08.2011 acted beyond its jurisdiction and
has usurped the constitutional power of the Governor in laying
down the procedure for appointment of the Chairman and
Members of the Public Service Commission, I have to set aside
the judgment dated 17.08.2011 of the Full Bench of the High
Court.‖
Thus, in respect of prayer (b) of WP(C) 4653/2013, the learned Attorney
General submitted that the first part of that prayer was nothing but a rehash
of the prayers made in the two earlier petitions which had been filed before
the Supreme Court and which had been dismissed by the Supreme Court.
The second part of prayer (b) could not be granted inasmuch as that would
be contrary to the constitutional scheme as contemplated under Article 148
read with Article 74 of the Constitution.
II.1 Re: The prayer of a writ of quo warranto
19. With regard to prayer (a) of WP(C) 4653/2013, it was submitted that
the petitioners are seeking a writ of quo warranto to set aside the
appointment of the respondent No. 2 as the CAG. It was submitted that quo
warranto, as a principle, applies to ―eligibility‖ and not ―suitability‖. It
applies to a situation where a person could not be appointed and not to a
situation where a person ought not to have been appointed. The learned
Attorney General referred to paragraph 10 of the counter-affidavit submitted
by the respondent No.1, wherein it has been stated that insofar as the
respondent No. 2 is concerned, his service record has been unimpeachable
and he has had 37 years of unblemished service and has a distinguished
record in the Indian Administrative Service both at the centre and his parent
cadre, Bihar. It is further stated therein that the respondent No.2 has had a
wide experience in many areas including Defence, Financial Services,
Information Technology, Public Administration, Labour Relations, Urban
Development and Industrial Development. It is further stated therein that it
was in this background that the respondent No. 2, who was the then Defence
Secretary, was recommended for appointment as the CAG. Furthermore, his
earlier elevation as a Secretary to the Government of India was possible only
after clearances from CBI, CVC and DoPT which clearly implies that he
possessed integrity and competence necessary for the high constitutional
position of CAG.
II.2 Re: The argument as regards conflict of interest
20. It was submitted that the argument of the petitioners that the
respondent No. 2's appointment would result in a conflict of interest because
the respondent No. 2 has worked in defence procurements for the last 10
years was factually incorrect. It was submitted that respondent No. 2 had,
during the last 10 years, held the post of an Additional Secretary in the
Department of Administrative Reforms and Public Grievances under the
Ministry of Personnel for the period April, 2007 to August, 2007.
Subsequently, the respondent No. 2 held the post of Secretary, Department
of Information Technology for the period September, 2010 to February,
2011 and he was the Secretary, Department of Financial Services for the
period February, 2011 to July, 2011. In this backdrop, it was contended that
the submissions of the petitioners that the respondent No. 2 had been
concerned only with defence procurements for the last 10 years prior to his
appointment as the CAG was misleading.
21. Furthermore, it was submitted that just because the respondent No. 2
had worked in the Ministry of Defence, he cannot be disqualified for being
considered for appointment as the CAG. This is so because any defence
procurement is the result of a collective decision. It cannot also be assumed
that all defence acquisitions are questionable. Furthermore, the respondent
No. 2 was not a member of the Technical Evaluation Committee, the
Technical Oversight Committee or the Contract Negotiation Committee nor
was the respondent No. 2 the competent financial authority and as such, it
cannot be said the respondent No. 2 suffered from any conflict of interest.
Moreover, the Defence Budget formed only a small portion of the total
Union Budget. It was stated that the total expenditure of the Union and the
State Governments which the CAG audits was about Rupees 26 lac crores in
2011-2012. Apart from the Union and State Government accounts, the CAG
is also entrusted with the audit of financial transactions of 1760 public sector
undertakings, 683 Central Autonomous Bodies, besides hundreds of State
Autonomous Bodies. It was contended that the audit of the defence sector,
therefore, formed only a small percentage of the total audit undertaken by
the CAG. It was further submitted that for the year 2012-13, out of 141 audit
reports, only 3 pertained to the defence sector. Similarly, for the year 2011-
2012, out of a total 137 audit reports, only 4 pertained to defence. As regards
the audit report on the acquisition of helicopters for VVIPs, it was submitted
that the said report was signed and had already been submitted by the former
CAG on 25.04.2013 to the President for laying before the Houses of
Parliament. That report has already been laid before Parliament on
13.08.2013 and, in any event, there are no allegations against or indictment
of the respondent No. 2 in that report. In any event, it was submitted that the
audit reports, which are submitted by the CAG, are subject to scrutiny by
Parliament or the legislatures of the States, as the case may be. A reference
was made to the Supreme Court decision in the case of Arun Kumar
Aggarwal v. Union of India: (2013) 7 SCALE 333, where the Court held
that a CAG report, by itself, cannot be accepted by the Court as the basis for
initiating any action. The Supreme Court had observed as under:-
―54. We have referred to the report of the CAG, the role of
the PAC and the procedure followed in the House, only to
indicate that the CAG report is always subject to scrutiny by
the Parliament and the Government can always offer its views
on the report of the CAG.
55. The question that is germane for consideration in this
case is whether this Court can grant reliefs merely placing
reliance on the CAG's report. The CAG's report is always
subject to parliamentary debates and it is possible that PAC
can accept the ministry's objection to the CAG report or reject
the report of the CAG. The CAG, indisputably is an
independent constitutional functionary, however, it is for the
Parliament to decide whether after receiving the report i.e.
PAC to make its comments on the CAG's report.
56. We may, however, point out that since the report is from
a constitutional functionary, it commands respect and cannot
be brushed aside as such, but it is equally important to examine
the comments what respective ministries have to offer on the
CAG's report. The ministry can always point out, if there is
any mistake in the CAG's report or the CAG has
inappropriately appreciated the various issues. For instance, we
cannot as such accept the CAG report in the instance case.‖
(underlining added)
II.3 Re: The argument that the procedure was illegal or arbitrary
22. It was also submitted that the challenge to the appointment of the
respondent No. 2 on the ground that the procedure was illegal or arbitrary is
without any substance. A reference was made to the Supreme Court
decision in the case of Sanchit Bansal v. Joint Admission Board: (2012) 1
SCC 157, wherein the Supreme Court held that an action is said to be
arbitrary or capricious when it is based on individual discretion, is illogical
and whimsical and without any reasonable explanation. It was submitted
that the present appointment of the respondent No. 2 as the CAG could not
be described as arbitrary as it was based on a practice which had been
followed and become a convention over several decades and had stood the
test of time as there is nothing whatsoever on record to show that the
procedure, which had been followed till date for the appointment of the
earlier CAGs, had resulted in the failure of any one of the CAGs in the
discharge of his duties as prescribed under the Constitution. With regard to
the importance of well-established conventions, reliance was placed by the
learned Attorney General on the Supreme Court decision in the case of
Supreme Court Advocates-on-Record Association v. Union of India:
(1993) 4 SCC 441, wherein the Supreme Court observed as under:-
― 344. K.C. Wheare in his book "Modern Constitutions"
gives at least two sources of conventions. A course of conduct
may be persisted in over a long period of time and gradually
attain first persuasive and then obligatory force. According to
him a convention may arise much more quickly than this.
There may be an agreement among the people concerned to
work in a particular way and to adopt a particular rule of
conduct. This rule is immediately binding and it is a
convention. Sir Ivor Jennings puts it as under:
The laws provide only a framework; those who put
the laws into operation give the framework a
meaning and fill in the interstices. Those who take
decisions create precedents which others tend to
follow and when they have been followed long
enough they acquire the sanctity and the
respectability of age. They not only are followed
but they have to be followed.‖
23. Finally, it was submitted by the learned Attorney General that the
CVC case (supra), on which the petitioners heavily relied, had no
application to the present case. In that case, there was a pending criminal
case against the incumbent and sanction for prosecution had even been
accorded by the State Government. Moreover, disciplinary proceedings had
also been recommended by the DoPT against the person under consideration
for appointment to the post of the Central Vigilance Commissioner. The
notings to this effect were not considered by the High Powered Committee
and this impinged upon ‗institutional integrity'. It was the recommendation
of the High Powered Committee which was in question in that case because
the notings, as regards the pending criminal case and the recommendations
for initiating disciplinary proceedings, had not been considered by the High
Powered Committee while making its recommendation. In the present case,
the facts are entirely different. No such proceedings are pending against the
respondent No. 2, who has had an impeccable service record. In his entire
service carrier, no disciplinary proceedings have been contemplated nor has
any case been initiated against him. Therefore, the petitions, according to
the learned Attorney General, are liable to be dismissed.
24. Mr Amit Sibal, the learned counsel appearing on behalf of the
respondent No. 2 in WP(C) 4653/2013, submitted that the respondent No. 2
has 37 years of unblemished record. There are no adverse notings insofar as
he is concerned and his appointment has been cleared by CVC etc. There is
no allegation with regard to the competence and integrity of the respondent
No. 2. Therefore, the CVC case (supra) would have no application to the
present case.
25. He further submitted that Article 148 of the Constitution does not
prescribe any narrow criteria for eligibility. He referred to the constituent
assembly debates and emphasised that a person to be appointed as the CAG
should have a comprehensive knowledge of the entire administration. He
submitted that the scope of duties of the CAG are very wide and by its very
nature, the CAG will have to consider various departments of the
Government including those departments in which he has served. In the
present case, it would include the departments pertaining to Financial
Service, Information Technology, Ministry of Personnel and Defence. But,
this, by itself, does not mean that there is any conflict of interest. Earlier,
CAGs have also served in departments which have fallen within the purview
of the CAG audits. There is, therefore, no question of any conflict of
interest. It was further submitted that defence procurements, which have
been the hub of allegations in these petitions, are not one-man decisions but
collective decisions. They were, in any event, not decided by the respondent
No. 2. As per the defence procurement procedure (DPP), there are three key
committees - Technical Oversight Committee (TOC), Technical Evaluation
Committee and the Contract Negotiation Committee. The respondent No. 2
was not a member of any of these three committees as would be evident
from paragraph 15 of the counter-affidavit submitted by the respondent
No. 1. Furthermore, the respondent No. 2 was also not the competent
financial authority for the sanctioning of procurement in respect of any of
the defence procurement cases mentioned in the petitions. As regards the 12
VVIP helicopters, Mr Sibal reiterated the submissions of the learned
Attorney General that the previous CAG had already placed his report before
the President on 20.04.2013 and the same had been laid before Parliament
on 13.08.2013. He submitted that in that report there is no indictment of the
respondent No. 2 nor is there any investigation contemplated with regard to
the respondent No. 2. Even the FIR lodged does not name the respondent
No.2 and there is no case of any kind against the respondent No. 2. There are
only two references to the respondent No. 2 in the said CAG report with
regard to the said helicopters. The first reference being at page 9 of the said
report No. 10/2013 to the following effect:-
―Discussion of revision in the ORs was held in a meeting
chaired by Deputy Chief of Air Staff (DCAS) in Air HQ
and attended by Joint Secretary & Acquisition -Manager
(Air), Director SPG and other officers from Air HQ (07
March 2005), wherein height altitude capability was
reduced to 4500 metre.‖
The reference to the Joint Secretary is a reference to the respondent
No.2. It merely indicates that the meeting was attended by him amongst
others. The second and only other reference to the respondent No. 2 is
to be found at page 13 of the said report No. 10/2013, which is to the
following effect:-
―Air HQ shortlisted the remaining two vendors. The TEC
evaluated the technical proposals of vendors i.e. Sikorsky (S-
92) and Agusta Westland (AW-101) and recommended the
two for field evaluation. The report of the TEC was accepted
by the Director General (Acquisitions) in December 2007. As
per the DPP-2006, the time frame for technical evaluation
and acceptance by DG (Acquisitions) was four months,
against which it took 10 months. The delay of six months was
on account of the fact that certain features such as sound
proofing (non-VVIP helicopters), product support after
expiration of warranty of the technical proposals in respect of
Sikorsky, and provision of active Missile Approach Warning
System (MAWS) proposals submitted by both the vendors
did not conform to the RFP requirements and deviations for
the same Were submitted to the RM for approval in
December 2007 by the DPB. Thereafter, it was sent to DG
(Acquisitions) for acceptance of the TEC report, as required
under Paragraph 36 of DPP-2006.‖
It was submitted by Mr Sibal that the reference to DG (Acquisitions) is
to the respondent No. 2. But, there were no adverse comments with regard
to the respondent No. 2. Moreover, the deviations were submitted to ―RM‖
which means ‗Raksha Mantri' or the Defence Minister and not to DG
(Acquisitions). It was, therefore, submitted by Mr Sibal that there is no
adverse comment made with regard to the respondent No. 2 in the CAG
report. In any event, the report has already been placed before Parliament
and, therefore, there is no question of conflict of interest on this aspect of the
matter.
26. With regard to the reliance placed by the petitioners on the CVC case
(supra), Mr Sibal outlined the fact that in that case the person concerned had
a case under Section 13 of the Prevention of Corruption Act, 1988 pending
against him. Furthermore, there was a statutory procedure prescribed for
appointment to the position of CVC. In that case, the High Powered
Committee did not consider the notings which indicated the pendency of a
criminal case as well as the recommendation for initiation of disciplinary
proceedings. He submitted that in the present case, there is no criminal case
against the respondent No. 2 and there are no adverse notings against the
respondent No. 2. The facts of the present case and that of the CVC case
(supra) are, therefore, according to Mr Sibal, entirely different and the said
judgment would have no application to the present case.
27. With regard to the prayer for issuance of a writ of quo warranto,
Mr Sibal submitted that such a writ, before it could be issued, required that
the office concerned must be a public office and, secondly, the appointment
to such office must not have been in conflict with the statutory rules. He
submitted that it is nobody's case that the appointment of the respondent
No. 2 was contrary to a statute. In this case, the applicable statute, if it can
be so called, was Article 148 of the Constitution. The said Article requires
that the CAG should be appointed by the President. The respondent No. 2
has been so appointed by the President. The only requirement is that the
appointment by the President must be on the basis of aid and advice of the
Council of Ministers. It is nobody's case that this was not done. There is no
other procedural requisite. Therefore, the writ of quo warranto does not at
all lie.
28. He further submitted that ‗suitability', as contrasted with ‗eligibility',
cannot be the subject matter of judicial review. He placed reliance on the
Supreme Court decision in the case of Hari Bansh Lal v. Sahodar Prasad
Mahto and Others: (2010) 9 SCC 655. According to Mr Sibal, the Supreme
Court in that case held that a writ petition raising the question of suitability
was not maintainable. Finally, Mr Sibal submitted that the CAG takes oath
of office under the Third Schedule to the Constitution. There can be no
presumption that the respondent No. 2, in his capacity as the CAG, would
not perform his duties and functions in terms of the oath that he has taken.
There is no dispute that the respondent No. 2 has been appointed in the
manner which has been prevalent for decades and which has fructified into a
convention. That procedure or convention had been challenged in two
earlier writ petitions before the Supreme Court, which have been dismissed.
Therefore, that procedure cannot now form the subject matter of another set
of writ petitions such as the present.
IV. Rejoinder arguments on behalf of the petitioners
29. In rejoinder, it was submitted on behalf of the petitioners that the
respondent No. 2 played the most important role in defence acquisitions.
The learned counsel for the petitioners made references to the CAG audit
report to submit that the Ministry's view was not acceptable. According to
them, the Ministry's reply was prepared by the respondent No. 2, who was
the then Defence Secretary. It was reiterated that the respondent No. 2, who
had been a part of the defence purchases, could not have been appointed as
the CAG and that he was the most inappropriate person selected and
appointed. It was, therefore, reiterated on behalf of the petitioners that the
writ petitions ought to be allowed by setting aside the appointment of the
respondent No. 2 as the CAG and by issuance of a writ of mandamus
directing the Union of India to frame a transparent selection procedure based
on definite criteria and to constitute a broad based non-partisan selection
committee, which, after calling for applications and nominations, would
recommend the most suitable person for appointment as the CAG to the
President of India.
V. Discussion
V.1 The CVC case
30. The petitioners placed heavy reliance on the CVC case (supra). The
question that was examined by the Supreme Court in the CVC case (supra)
was concerning the legality of the appointment of the respondent No. 2
therein as the Central Vigilance Commissioner under Section 4(1) of the
Central Vigilance Commission Act, 2003 (hereinafter referred to as ‗the
CVC Act'). The Supreme Court observed that while the Government is not
accountable to the courts in respect of policy decisions, they are accountable
for the legality of such decisions. The Supreme Court also cautioned that
while deciding such cases, the difference between ‗legality' and ‗merit', as
also between ‗judicial review' and ‗merit review', should not be lost sight
of. In the CVC case (supra), the High Powered Committee (HPC), which
had been duly constituted under the proviso to Section 4(1) of the CVC Act,
had recommended the name of the respondent No. 2 therein for appointment
to the post of Central Vigilance Commissioner. The validity of that
recommendation fell for judicial scrutiny. The Supreme Court observed that
the Central Vigilance Commission is an ‗integrity institution'. This would be
clear from the following extract of the said decision:-
―In our opinion, CVC is an integrity institution. This is clear
from the scope and ambit (including the functions of the
Central Vigilance Commissioner) of the 2003 Act. It is
an Institution which is statutorily created under the Act. It is
to supervise vigilance administration. The 2003 Act provides
for a mechanism by which the CVC retains control over CBI.
That is the reason why it is given autonomy and insulation from
external influences under the 2003 Act. For the purposes of
deciding this case, we need to quote the relevant provisions of
the 2003 Act.‖
We may also note that by virtue of Section 3(3) of the CVC Act, the Central
Vigilance Commissioner is to be appointed from amongst persons who have
been or are in all-India service or in any civil service of the Union or in a
civil post under the Union having knowledge and experience in the matters
relating to vigilance, policy-making and administration including police
administration. It would become immediately clear that this provision of
eligibility is entirely different from the wide area of selection which the
President, under Article 148(1), can traverse before a CAG is appointed.
Section 4 of the CVC Act reads as under:-
―4. Appointment of Central Vigilance Commissioner and
Vigilance Commissioners.-
(1) The Central Vigilance Commissioner and the Vigilance
Commissioners shall be appointed by the President by warrant
under his hand and seal:
Provided that every appointment under this sub-section shall be
made after obtaining the recommendation of a Committee
consisting of-
(a) the Prime Minister - Chairperson;
(b) the Minister of Home Affairs -Member;
(c) the Leader of the Opposition in the House of the
People -Member.
Explanation. -For the purposes of this sub-section, ―the Leader
of the Opposition in the House of the People‖ shall, when no
such Leader has been so recognized, include the Leader of the
single largest group in opposition of the Government in the
House of the People.
(2) No appointment of a Central Vigilance Commissioner or
a Vigilance Commissioner shall be invalid merely by reason of
any vacancy in the Committee.‖
From the above, it would be clear that while the Central Vigilance
Commissioner is appointed by the President by warrant under his hand and
seal and the CAG by virtue of Article 148(1) of the Constitution is also
appointed by the President by warrant under his hand and seal, the
appointment of the Central Vigilance Commissioner is to be made only after
obtaining the recommendation of a committee consisting of the Prime
Minister (Chairperson), the Minister of Home Affairs (Member) and the
Leader of the Opposition in the House of the People (Member). In the case
of the CAG, there is no such stipulation. This distinction has to be kept in
mind while we consider the present writ petitions.
31. The Supreme Court observed that the words ―who have been or are‖
in Section 3(3)(a) of the CVC Act refer to the person holding office of a civil
servant or who has held such office. These words were regarded as
indicating an eligibility criteria and they further indicate that such post or
eligible persons should be without any blemish whatsoever and that they
should not be appointed merely because they are eligible to be considered
for the post. The Supreme Court further observed as under:-
―36. For the sake of brevity, we may refer to the Selection
Committee as High Powered Committee. The key word in the
proviso is the word "recommendation". While making the
recommendation, the HPC performs a statutory duty. The
impugned recommendation dated 3rd September, 2010 is in
exercise of the statutory power vested in the HPC under the
proviso to Section 4(1). The post of Central Vigilance
Commissioner is a statutory post. The Commissioner performs
statutory functions as enumerated in Section 8. The word
'recommendation' in the proviso stands for an informed decision
to be taken by the HPC on the basis of a consideration of
relevant material keeping in mind the purpose, object and
policy of the 2003 Act. As stated, the object and purpose of the
2003 Act is to have an integrity Institution like CVC which is in
charge of vigilance administration and which constitutes an
anti-corruption mechanism. In its functions, the CVC is similar
to Election Commission, Comptroller and Auditor General,
Parliamentary Committees etc. Thus, while making the
recommendations, the service conditions of the candidate being
a public servant or civil servant in the past is not the sole
criteria. The HPC must also take into consideration the question
of institutional competency into account. If the selection
adversely affects institutional competency and functioning then
it shall be the duty of the HPC not to recommend such a
candidate. Thus, the institutional integrity is the primary
consideration which the HPC is required to consider while
making recommendation under Section 4 for appointment of
Central Vigilance Commissioner.
37. 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. Whether the
incumbent would or would not be able to function? Whether the
working of the Institution would suffer? If so, would it not be
the duty of the HPC not to recommend the person. In this
connection the HPC has also to keep in mind the object and the
policy behind enactment of the 2003 Act.
38. Under Section 5(1) the Central Vigilance Commissioner
shall hold the office for a term of 4 years. Under
Section 5(3) the Central Vigilance Commissioner shall, before
he enters upon his office, makes and subscribes before the
President an oath or affirmation according to the form set out in
the Schedule to the Act. Under Section 6(1) the Central
Vigilance Commissioner shall be removed from his office only
by order of the President and that too on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a
reference made to it by the President, has on inquiry reported
that the Central Vigilance Commissioner be removed.
39. These provisions indicate that the office of the Central
Vigilance Commissioner is not only given independence and
insulation from external influences, it also indicates that such
protections are given in order to enable the Institution of CVC
to work in a free and fair environment. The prescribed form of
oath under Section 5(3) requires Central Vigilance
Commissioner to uphold the sovereignty and integrity of the
country and to perform his duties without fear or favour. All
these provisions indicate that CVC is an integrity institution.
The HPC has, therefore, to take into consideration the values
independence and impartiality of the Institution. The said
Committee has to consider the institutional competence. It has
to take an informed decision keeping in mind the
abovementioned vital aspects indicated by the purpose and
policy of the 2003 Act.‖
From the above extract, it is evident that the post of the Central Vigilance
Commissioner is a statutory post and the Commissioner performs statutory
functions as enumerated in Section 8 of the CVC Act. The Central
Vigilance Commission is an integrity institution and in its functions, it is
similar to the Election Commission, the Comptroller and Auditor-General,
the Parliamentary Committees etc. It was, therefore, observed that while
making recommendations, the service conditions of the candidate, being a
public servant or civil servant in the past, was not the sole criteria and the
HPC must also take into consideration the question of ―institutional
competency‖. The Supreme Court further observed that if the selection
adversely affects institutional competency and functioning, then it is the duty
of the HPC not to recommend such a candidate. It was noted in the above
decision that in the case before it, the vital aspect of institutional integrity
had not been taken into account by the HPC while recommending the name
of the respondent No. 2 therein for appointment as the Central Vigilance
Commissioner. The Supreme Court further noted that the HPC has to take
into consideration the values, independence and impartiality of the
Institution and it has to consider the institutional competence. It has to take
an informed decision keeping in mind these vital aspects.
32. The Supreme Court further observed as under:-
―43. 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 (see SCC para 88 of N. Kannadasan v. Ajoy
Khose: (2009) 7 SCC 1) . The decision to recommend has got
to be an informed decision keeping in mind the fact that CVC
as an institution has to perform an important function of
vigilance administration. If a statutory body like HPC, for any
reason whatsoever, fails to look into the relevant material
having nexus to the object and purpose of the 2003 Act or takes
into account irrelevant circumstances then its decision would
stand vitiated on the ground of official arbitrariness (see State
of Andhra Pradesh v. Nalla Raja Reddy: AIR 1967 SC 28.
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 [see para 93 of N. Kannadasan (supra)].
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 [see para 103 of N. Kannadasan (supra)].
44. We should not be understood to mean that the personal
integrity is not relevant. It certainly has a co-relationship with
institutional integrity. The point to be noted is that 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 26-6-2000, 18-1-2001, 20-6-2003, 24-2-2004,
18-10-2004 and 2-11-2004 have all observed that penalty
proceedings may be initiated against Shri P.J. Thomas. Whether
State should initiate such proceedings or the Centre should
initiate such proceedings was not relevant. What is relevant is
that such notings were not considered in juxtaposition with the
clearance of CVC granted on 6-10-2008. Even in the Brief
submitted to the HPC by DoPT, there is no reference to the said
notings between the years 2000 and 2004. Even in the C.V. 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 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. The
fact remains that the HPC, for whatsoever reason, has failed to
consider the relevant material keeping in mind the purpose and
policy of the 2003 Act.‖
As observed by the Supreme Court, if the HPC, for any reason whatsoever,
fails to look into relevant material having a nexus with the object and
purpose of the CVC Act or takes into account irrelevant circumstances, then
its decision would stand vitiated on the ground of official arbitrariness. The
Supreme Court importantly observed that 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. The Supreme Court also noted in the
case before it that the HPC did not even consider the relevant material in
respect of personal integrity. It did not consider the notings of the DoPT,
wherein there were observations that penalty proceedings be initiated against
the respondent No. 2 therein. The Supreme Court concluded that the HPC
had failed to consider the relevant material keeping in mind the purpose and
policy of the CVC Act.
33. The Supreme Court in the CVC case (supra) further held as under:-
―46. While making recommendations, the HPC performs a
statutory duty. Its duty is to recommend. While making
recommendations, the criteria of the candidate being a public
servant or a civil servant in the past is not the sole
consideration. The HPC has to look at the record and take into
consideration whether the candidate would or would not be able
to function as a Central Vigilance Commissioner. Whether the
institutional competency would be adversely affected by
pending proceedings and if by that touchstone the candidate
stands disqualified then it shall be the duty of the HPC not to
recommend such a candidate. In the present case apart from the
pending criminal proceedings, as stated above, between the
period 2000 and 2004 various notings of DoPT recommended
disciplinary proceedings against Shri P.J. Thomas in respect of
Palmolein case. Those notings have not been considered by the
HPC. As stated above, the 2003 Act confers autonomy and
independence to the institution of CVC. Autonomy has been
conferred so that the Central Vigilance Commissioner could act
without fear or favour.
47. We may reiterate that institution is more important than
an individual. This is the test laid down in para 93 of N.
Kannadasan's case (supra). In the present case, the HPC has
failed to take this test into consideration. The recommendation
dated 3-9-2010 of HPC is entirely premised on the blanket
clearance given by CVC on 6-10-2008 and on the fact of
Respondent No. 2 being appointed as Chief Secretary of Kerala
on 18-7-2007; his appointment as Secretary of Parliamentary
Affairs and his subsequent appointment as Secretary, Telecom.
In the process, the HPC, for whatever reasons, has failed to take
into consideration the pendency of Palmolein case before the
Special Judge, Thiruvananthapuram being case CC No. 6 of
2003; the sanction accorded by the Government of Kerala on
30-11-1999 under Section 197 Code of Criminal Procedure for
prosecuting inter alia Shri P.J. Thomas for having committed
alleged offence under Section 120B IPC read with
Section 13(1)(d) of the Prevention of Corruption Act............‖
It would be evident from the above that in the case before it, even the
pending criminal case was not considered by the HPC. More importantly, it
was noted that the HPC had failed to take into consideration the pendency of
the Palmolein case before the Special Judge, Thiruvananthapuram in respect
of which sanction had been accorded by the Government of Kerala under
Section 197 Cr. P.C for prosecuting, inter alia, the respondent No. 2 therein
for allegedly having committed an offence under Section 120B IPC read
with Section 13(1)(d) of the Prevention of Corruption Act. It is for these
reasons and, particularly, the fact that the relevant material with regard to the
DoPT notings and the pendency of the criminal case not having been
considered by the HPC while making its recommendation, that the Supreme
Court held the said recommendation of the HPC to be non-est in law.
34. We must also notice the observations of the Supreme Court in the
CVC case (supra) with regard to a writ of quo warranto. The Supreme
Court observed that the procedure of quo warranto confers jurisdiction and
authority on the judiciary to control executive action in the matter of making
appointments to public offices against the relevant statutory provisions.
Before a citizen can claim a writ of quo warranto, he must satisfy the court,
inter alia, that the office in question is a public office and it is held by a
person without legal authority and that leads to the inquiry as to whether the
appointment of the said person has been in accordance with law or not. The
Supreme Court observed that a writ of quo warranto is issued to prevent a
continued exercise of unlawful authority. With reference to R.K. Jain v.
Union of India: (1993) 4 SCC 119, the Supreme Court, in the CVC case
(supra), observed that judicial review is concerned with whether the
incumbent possessed the requisite qualification for appointment and whether
the manner in which the appointment came to be made or the procedure
adopted was fair, just and reasonable. It was noted that when a candidate is
found qualified and eligible and is accordingly appointed by the executive to
hold a public office, the Court cannot, in judicial review, sit over the choice
of the selection. A reference was also made to the earlier Supreme Court
decision in the case of Hari Bansh Lal (supra), wherein the Supreme Court
held that a writ of quo warranto lies only when the appointment is contrary
to the statutory provisions. It was further noted that in Hari Bansh Lal
(supra), the Supreme Court had observed that ―suitability‖ of a candidate for
appointment to a post is to be judged by the appointing authority and not by
the Court unless the appointment is contrary to the statutory provisions or
rules. In this backdrop, the Supreme Court, in CVC case (supra), observed
as under:-
63. As stated above, we need to keep in mind the difference
between judicial review and merit review. As stated above, in
this case the judicial determination is confined to the integrity
of the decision making process undertaken by the HPC in terms
of the proviso to Section 4(1) of the 2003 Act. If one carefully
examines the judgment of this Court in Ashok Kumar Yadav v.
State of Haryana: (1985) 4 SCC 417 the facts indicate that the
High Court had sat in appeal over the personal integrity of the
Chairman and Members of the Haryana Public Service
Commission in support of the collateral attack on the selections
made by the State Public Service Commission. In that case, the
High Court had failed to keep in mind the difference between
judicial and merit review. Further, this Court found that the
appointments of the Chairperson and Members of Haryana
Public Service Commission were in accordance with the
provisions of the Constitution. In that case, there was no issue
as to the legality of the decision-making process. On the
contrary the last sentence of para 9 supports our above
reasoning when it says that it is always open to the Court to set
aside the decision (selection) of the Haryana Public Service
Commission if such decision is vitiated by the influence of
extraneous considerations or if such selection is made in breach
of the statute or the rules.
35. In the light of the above discussion with regard to the CVC case
(supra), it immediately becomes clear that there are several differences
between the CVC case (supra) and the present writ petitions. First of all, the
Central Vigilance Commissioner is a statutory authority, whereas the CAG
is a constitutional authority. Secondly, the Central Vigilance Commissioner
is to be appointed upon the recommendation of a High Powered Committee
by virtue of Section 4(1) of the CVC Act. There is no similar statutory
provision requiring the selection by and recommendation of a committee,
insofar as the appointment of a CAG is concerned. The only provision for
appointment of the CAG is Article 148(1), which only stipulates that he shall
be appointed by the President by warrant under his hand and seal. The
President appoints the CAG on the aid and advice of the Council of
Ministers headed by the Prime Minster. That is the manner in which the
appointments of CAGs till date have been made and that is the manner in
which the respondent No. 2 has been appointed as the CAG. Thirdly, the
manner of removal of the Central Vigilance Commissioner is provided in
Section 6(1) of the CVC Act which stipulates that he can be removed from
office only by order of the President on the ground of proved misbehaviour
or incapacity, after the Supreme Court, on a reference made to it by the
President, has, on inquiry, reported that the Central Vigilance Commissioner
ought, on such ground, be removed. Of course, by virtue of Section 6(3) of
the CVC Act, notwithstanding anything contained in sub-section (1), the
President may by order remove the Central Vigilance Commissioner from
office in several clear-cut instances, such as, when he is adjudged an
insolvent; or has been convicted of an offence which, in the opinion of the
Central Government, involves moral turpitude; or engages during his term of
office in any paid employment outside the duties of his office; or is, in the
opinion of the President, unfit to continue in office by reason of infirmity of
mind or body; or has acquired such financial or other interest as is likely to
affect prejudicially his functions as a Central Vigilance Commissioner or a
Vigilance Commissioner. On the other hand, the CAG can be removed from
office as per Article 148(1) of the Constitution in like manner and on the like
grounds as a Judge of the Supreme Court. Article 124(4) of the Constitution,
as we have pointed out above, stipulates that a Judge of the Supreme Court
shall not be removed from his office except by an order of the President
passed after an address by each House of Parliament supported by a majority
of the total membership of that House and by a majority of not less than two-
thirds of the members of that House present and voting which has been
presented to the President in the same session for such removal on the
ground of proved misbehaviour or incapacity. Fourthly, in the CVC case
(supra), the respondent No. 2 therein was under a cloud in the sense that
there were notings of DoPT with regard to initiation of disciplinary
proceedings against him and sanction had been accorded under Section
197 Cr.P.C for prosecuting him for having allegedly committed an offence
under Section 120B IPC read with Section 13(1)(d) of the Prevention of
Corruption Act. These factors had been ignored by the High Powered
Committee while recommending the name of the respondent No. 2 therein
for the post of the Central Vigilance Commissioner. It is for these reasons
that the recommendation made by the High Powered Committee was found
to be non-est in law by the Supreme Court in the CVC case (supra).
36. In the case before us, there is no pending disciplinary proceedings nor
any pending criminal case insofar as the respondent No. 2 herein is
concerned. Thus, while the legality of the appointment of the respondent
No. 2 as the Central Vigilance Commissioner was in question before the
Supreme Court in the CVC case (supra), this is not the case in the present
writ petitions. In judicial review, as pointed out in the CVC case (supra), we
are concerned not about the merit but about the legality of the appointment.
What the petitioners want us to do is to examine the merit of the
appointment of the respondent No. 2 as the CAG. That would amount to a
merit review which is entirely distinct and different from judicial review.
There is no doubt that the CAG is an integrity institution, but that by itself,
would not entitle us to conduct a merit review in the guise of a judicial
review. In our view, there are several distinguishing features, on facts,
which have been pointed out above, which would make the CVC case
(supra) inapplicable to the position obtaining in the appointment of the
respondent No. 2 as the CAG.
V.2 The Punjab PSC case
37. The next decision which was relied upon by the learned counsel for
the petitioners was that of the Punjab PSC case (supra). The question
before the Supreme Court was whether the High Court, in exercise of its writ
jurisdiction under Article 226 of the Constitution, could lay down the
procedure for the selection and appointment of the Chairman of the State
Public Service Commission and quash his appointment in appropriate cases?
Article 316(1) stipulates, inter alia, that the Chairman of a Public Service
Commission shall be appointed in the case of the Union Commission or a
Joint Commission, by the President, and in the case of a State Commission,
by the Governor of the State. Article 317 of the Constitution prescribes the
manner of removal and suspension of, inter alia, the Chairman of a Public
Service Commission. The manner of removal is akin to that of the manner
of removal of the Central Vigilance Commissioner to which we have already
alluded to above. In the Punjab PSC case (supra), the Supreme Court, with
reference to Article 316 of the Constitution, observed as under:-
―A reading of Article 316 of the Constitution would show that it
confers power on the Governor of the State to appoint the
Chairman and other Members of a Public Service Commission.
It has been held by this Court in Mohinder Singh Gill and
Anr. v. The Chief Election Commissioner, New Delhi and
Others (supra) that an authority has implied powers to make
available and carry into effect powers expressly conferred on it.
Thus, under Article 316 of the Constitution, the Governor of a
State has not only the express power of appointing the
Chairman and other Members of Public Service Commission
but also the implied powers to lay down the procedure for
appointment of Chairman and Members of the Public Service
Commission and the High Court cannot under Article 226 of
the Constitution usurp this constitutional power of the
Government and lay down the procedure for appointment of the
Chairman and other Members of the Public Service
Commission. The Full Bench of the High Court, therefore,
could not have laid down the procedure for appointment of the
Chairman and Members of the Punjab Public Service
Commission and the Haryana Public Service Commission by
the impugned judgment dated 17.08.2011.‖
(underlining added)
It is evident from the above extract that by virtue of Article 316 of the
Constitution, the Governor of a State had not only the express power of
appointing the Chairman of the Public Service Commission, but also the
implied powers to lay down the procedure for appointment of, inter alia, the
Chairman of the Public Service Commission and that the High Court, under
Article 226 of the Constitution, could not usurp this constitutional power of
the Government and lay down the procedure for appointment of, inter alia,
the Chairman of the Public Service Commission. The Supreme Court
further observed (per Patnaik, J.) that even though Article 316 did not
specify the qualities that a Chairman of a Public Service Commission is
required to possess, however, the qualities of ‗integrity' and ‗competence'
are implied relevant factors which have to be taken into consideration while
selecting a person to the post of the Chairman of a Public Service
Commission. It was further observed that if these relevant factors are not
taken into account, the Court can hold the selection and appointment to be
not in accordance with the Constitution. The Supreme Court (per Patnaik, J.)
further observed that the Chairman of a Public Service Commission who has
to perform his duties under Article 320 of the Constitution with
independence from the State Government cannot be equated with the Chief
Secretary or the DG or IG Police, who are concerned solely with the
administrative functions and had to work under the State Government. The
Supreme Court (per Patnaik, J.) held as under:-
―........Therefore, I hold that the High Court should not
normally, in exercise of its power under Article 226 of the
Constitution, interfere with the discretion of the State
Government in selecting and appointing the Chairman of the
State Public Service Commission, but in an exceptional case if
it is shown that relevant factors implied from the very nature of
the duties entrusted to Public Service Commissions under
Article 320 of the Constitution have not been considered by the
State Government in selecting and appointing the Chairman of
the State Public Service Commission, the High Court can
invoke its wide and extra-ordinary powers under Article 226 of
the Constitution and quash the selection and appointment to
ensure that the discretion of the State Government is exercised
within the bounds of the Constitution.‖
The Supreme Court (per Patnaik, J.) further observed as under:-
―.....These materials do not indicate that Mr. Harish Dhanda
had any knowledge or experience whatsoever either in
administration or in recruitment nor do these materials indicate
that Mr. Harish Dhanda had the qualities to perform the duties
as the Chairman of the State Public Service Commission under
Article 320 of the Constitution which I have discussed in this
judgment. No other information through affidavit has also been
placed on record before us to show that Mr. Harish Dhanda has
the positive qualities to perform the duties of the office of the
Chairman of the State Public Service Commission under
Article 320 of the Constitution. The decision of the State
Government to appoint Mr. Harish Dhanda as the Chairman of
the Punjab Public Service Commission was thus invalid for
non-consideration of relevant factors implied from the very
nature of the duties entrusted to the Public Service
Commissions under Article 320 of the Constitution.‖
In a concurring opinion, Madan B. Lokur, J. observed as under:-
―While it is difficult to summarize the indicators laid down by
this Court, it is possible to say that the two most important
requirements are that personally the Chairperson of the Public
Service Commission should be beyond reproach and his or her
appointment should inspire confidence among the people in the
institution. The first ‗quality' can be ascertained through a
meaningful deliberative process, while the second 'quality' can
be determined by taking into account the constitutional,
functional and institutional requirements necessary for the
appointment.‖
With reference to the CVC case (supra), the learned Judge observed as
under:-
―101. Acknowledging this, this Court looked at the
appointment of the Central Vigilance Commissioner not as a
merit review of the integrity of the selected person, but as a
judicial review of the recommendation making process relating
to the integrity of the institution. It was made clear that while
the personal integrity of the candidate cannot be discounted,
institutional integrity is the primary consideration to be kept in
mind while recommending a candidate. It was observed that
while this Court cannot sit in appeal over the opinion of the
HPC, it can certainly see whether relevant material and vital
aspects having nexus with the objects of the Act are taken into
account when a recommendation is made. This Court
emphasized the overarching need to act for the good of the
institution and in the public interest. Reference in this context
was made to N. Kannadasan.
102. Keeping in mind the law laid down and the facts as they
appear from the record, it does appear that the constitutional,
functional and institutional requirements of the Punjab Public
Service Commission were not kept in mind when Mr. Dhanda
was recommended for appointment as its Chairperson.‖
He further distinguished the case of Hari Bansh Lal (supra) and other cases
referred therein by observing that none of those decisions dealt with the
appointment to a constitutional position such as the Chairperson of a Public
Service Commission. He further observed that he was unable to accept the
view that the suitability of an appointee to the post of Chairperson of a
Public Service Commission should be evaluated on the same yardstick as
the appointment of a senior administrative functionary. Moreover, in the
case of an administrative functionary, the State Government or the Chief
Minister and the appointee usually share a similar vision of the
administrative goals and requirements of the State and the underlying
premise is that the State Government or the Chief Minister must have
confidence that the appointee would deliver administratively and also be
compatible with each other. In the case of the Chairperson of a State Public
Service Commission, the question of confidence does not arise nor does the
issue of compatibility. The Supreme Court concluded as under:-
―142. The appointment of the Chairperson of the Punjab Public
Service Commission is an appointment to a constitutional
position and is not a "service matter". A PIL challenging such
an appointment is, therefore, maintainable both for the issuance
of a writ of quo warranto and for a writ of declaration, as the
case may be.
143. In a case for the issuance of a writ of declaration,
exercise of the power of judicial review is presently limited to
examining the deliberative process for the appointment not
meeting the constitutional, functional and institutional
requirements of the institution whose integrity and commitment
needs to be maintained or the appointment for these reasons not
being in public interest.
144. The circumstances of this case leave no room for doubt
that the notification dated 7th July 2011 appointing Mr. Harish
Rai Dhanda was deservedly quashed by the High Court since
there was no deliberative process worth the name in making the
appointment and also since the constitutional, functional and
institutional requirements of the Punjab Public Service
Commission were not met.
145. In the view that I have taken, there is a need for a word of
caution to the High Courts. There is a likelihood of comparable
challenges being made by trigger-happy litigants to
appointments made to constitutional positions where no
eligibility criterion or procedure has been laid down. The High
Courts will do well to be extremely circumspect in even
entertaining such petitions. It is necessary to keep in mind that
sufficient elbow room must be given to the Executive to make
constitutional appointments as long as the constitutional,
functional and institutional requirements are met and the
appointments are in conformity with the indicators given by this
Court from time to time.
146. Given the experience in the making of such
appointments, there is no doubt that until the State Legislature
enacts an appropriate law, the State of Punjab must step in and
take urgent steps to frame a memorandum of procedure and
administrative guidelines for the selection and appointment of
the Chairperson and members of the Punjab Public Service
Commission, so that the possibility of arbitrary appointments is
eliminated.
147. The Civil Appeals are disposed of as directed by Brother
Patnaik.‖
(underlining added)
38. It is evident from the above that the appointment of the Chairman of
the Punjab State Public Service Commission was held to be bad because
relevant factors, such as integrity and competence, had not been taken into
account. Furthermore, there was no deliberative process for the appointment
so as to meet the constitutional functions and institutional requirements of
the institution whose integrity and commitment needed to be maintained. It
must be noted that directions were given that until the State Legislature
enacts an appropriate law, the State of Punjab ought to step in and take
urgent steps to frame a memorandum of procedure and administrative
guidelines for selection and appointment of the Chairperson and members of
the Punjab Public Service Commission so that the possibility of arbitrary
appointments is eliminated.
V.3 The CIC case
39. The next decision relied upon by the petitioners was that of the
Supreme Court in the CIC case (supra). Particular reference was made to
paragraphs 108.10 and 108.11, which read as under:-
―108.10 The appointment of the Information Commissioners at
both levels should be made from amongst the persons
empanelled by the DoPT in the case of Centre and the
concerned Ministry in the case of a State. The panel has to be
prepared upon due advertisement and on a rational basis as
afore-recorded.
108.11 The panel so prepared by the DoPT or the concerned
Ministry ought to be placed before the High-powered
Committee in terms of Section 12(3), for final recommendation
to the President of India. Needless to repeat that the High
Powered Committee at the Centre and the State levels is
expected to adopt a fair and transparent method of
recommending the names for appointment to the competent
authority.‖
On the basis of the above, it was contended that as in the case of the
appointment of Information Commissioners, a panel ought to be prepared
after due advertisement and upon following a rational basis even in the case
of selection of a person for the office of the CAG. It was contended that
there must be transparency and one facet of which is to advertise the post
and invite applications for the same. It must be pointed out that the Chief
Information Commissioner and the Information Commissioners are
appointed by the President on the recommendation of a committee
consisting of the Prime Minister (Chairperson), Leader of Opposition in the
Lok Sabha and a Union Cabinet Minister to be nominated by the Prime
Minister. This is provided in Section 12(3) of the Right to Information Act,
2005. Section 12(5) stipulates that the Chief Information Commissioner and
Information Commissioners shall be persons of eminence in public life with
wide knowledge and experience in law, science and technology, social
service, management, journalism, mass media or administration and
governance. Section 12(6) further stipulates that the Chief Information
Commissioner or an Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or Union territory, as
the case may be, or hold any other office of profit or be connected with any
political party or carry on any business or pursue any profession. The
removal of the Chief Information Commissioner or Information
Commissioners is provided for in Section 14 of the Right to Information Act
and is akin to that of the removal of the Central Vigilance Commissioner.
The question that was, inter alia, being considered by the Supreme Court in
the said CIC case (supra) was the validity of sub-Sections (5) and (6) of
Section 12 and sub-Sections (5) and (6) of Section 15 of the Right to
Information Act, 2005, which primarily deal with the eligibility criteria for
appointment to the post of Chief Information Commissioner and Information
Commissioners both at the Central and State levels. The Court ultimately
held that it would serve the ends of justice if the Information Commission
was manned by persons of legal expertise and with adequate experience in
the field of adjudication. It was further clarified that such judicial members
could work individually or in Benches of two, one being a judicial member
while the other being a qualified person from the specified fields to be called
an expert member. It further held that in order to satisfy the test of
constitutionality, the provisions of Section 12(5) of the Right to Information
Act, 2005 would have to be read in a manner that the expression ‗knowledge
and experience' includes basic degree in that field and experience gained
thereafter and secondly that legally qualified, trained and experienced
persons would better administer justice to the people, particularly when they
are expected to undertake an adjudicatory process which involves critical
legal questions and niceties of law.
40. Essentially, the CIC Case (supra) was referred to by the learned
counsel for the petitioners for the proposition that the appointment of the
Information Commissioners should be from amongst empanelled persons
and that panel should be prepared after due advertisement and on a rational
basis. It was, therefore, contended that the CAG should also be appointed
after following such a process. As in the case of the appointment of a CVC,
so too the case of appointment of Information Commissioners cannot be
compared with the present case of appointment of a CAG. It may be
remembered that in B. S. Minhas (supra), the Supreme Court observed that
there are quite a few posts at the top level which cannot be and should not be
advertised or publicised because they are posts for which there should be no
lobbying nor should any applications be allowed to be entertained. In the
said decision, examples of such posts were given, which include posts of
Commander of Armed Forces, of the Supreme Court Judges and of judges of
the High Courts. We may add that the office of the CAG should also find
mention in that list and, therefore, the submission that the post of the CAG
ought to have been advertised is not acceptable to us. What may be
appropriate in the case of appointment of Information Commissioners would
not necessarily be appropriate for the high office of a CAG, as is evident
from the distinction brought about between different levels of posts in B. S.
Minhas (supra). The reasons for the same have been indicated by us while
considering the CVC case (supra) and the same need not be repeated at this
juncture.
V. 4 The other decisions
41. The other decisions referred to by the learned counsel for the
petitioners being Royappa's case (supra) and the decisions in Manak Lal
(supra) and Ranjit Thakur (supra) are unexceptionabe. In Royappa's case
(supra), the Supreme Court observed that equality is a dynamic concept with
many aspects and dimensions and it cannot be ―cribbed, cabined and
confined‖ within traditional and ―doctrinaire‖ limits. It was observed that
from a positivistic point of view, equality is antithetic to arbitrariness. It was
further observed that in fact, equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and constitutional law and
is, therefore, violative of Article 14. There is no denying that there should
be no arbitrariness in any State action, including in the appointment of the
CAG. The quarrel is not with this principle. The question is whether, in the
facts of the present case, there has been any arbitrariness in the appointment
of the respondent No. 2 as the CAG. In our view, there has not. The
respondent No. 2 was appointed following a time tested convention. As in
the appointment of all previous CAGs in the past, so, too, in the present, the
CAG has been selected from amongst civil servants who have rich and
varied experience in public administration. The procedure that has been
established and has worked itself into a convention over the last several
decades is that the Cabinet Secretariat, which is headed by the Cabinet
Secretary, who is the senior most civil servant having knowledge about the
competence and integrity of the civil servants in the government, sends the
list of shortlisted names (approved by the Finance Minister) to the Prime
Minister for his consideration. The Prime Minister thereafter considers the
said shortlisted names and recommends one name out of that list to the
President of India for his approval. After the name is approved by the
President, the CAG is appointed under the warrant and seal of the President
of India. This is the manner in which the appointments to the position of
CAG have been made in the past and this is the manner in which the
respondent No. 2 was appointed as the CAG. There has been no
arbitrariness in this process. It is not as if the shortlist was not prepared by
the Cabinet Secretary. It is not as if the Finance Minister did not approve of
the same. It is not as if the Prime Minister had not recommended the name
of the respondent No. 2 to the President and it is not as if the President had
not approved the name of the respondent No. 2. Therefore, the process of
appointment, which was followed as a convention, has been followed and
there was no deviation from the same. Therefore, it cannot be said that there
was any arbitrariness involved in the appointment of the respondent No. 2 as
the CAG.
42. Although the learned counsel for the petitioners referred to the
Supreme Court decisions in Manak Lal (supra) and Ranjit Thakur (supra)
on the point of bias, we fail to see as to how they would apply to the facts of
the present case.
V.5 The aspect of Quo Warranto
43. We now come to the aspect of whether a writ of quo warranto can be
issued in this case. In The University of Mysore and Another v. C.D.
Govinda Rao and Another: [1964] 4 SCR 575, a Constitutional Bench of
the Supreme Court held that:-
―Broadly stated, the quo warranto proceeding affords a judicial
enquiry in which any person holding an independent
substantive public office, or franchise, or liberty, is called upon
to show by what right he holds the said office, franchise or
liberty; if the inquiry leads to the finding that the holder of the
office has no valid title to it, the issue of the writ of quo
warranto ousts him from that office. In other words, the
procedure of quo warranto confers jurisdiction and authority on
the judiciary to control executive action in the matter of making
appointments to public offices against the relevant statutory
provisions; it also protects a citizen from being deprived of
public office to which he may have a right. It would thus be
seen that if these proceedings are adopted subject to the
conditions recognised in that behalf, they tend to protect the
public from usurpers of public office; in some cases, persons,
not entitled to public office may be allowed to occupy them and
to continue to hold them as a result of the connivance of the
executive or with its active help, and in such cases, if the
jurisdiction of the courts to issue writ of quo warranto is
properly invoked, the usurper can be ousted and the person
entitled to the post allowed to occupy it. It is thus clear that
before a citizen can claim a writ of quo warranto, he must
satisfy the court, inter alia, that the office in question is a public
office and is held by usurper without legal authority, and that
necessarily leads to the enquiry as to whether the appointment
of the said alleged usurper has been made in accordance with
law or not.‖
(underlining added)
44. Quo warranto is essentially a judicial remedy available against a
usurper of a public office. Quo warranto (by what authority) is a question
which is put to the pretender or a person occupying a public office to show
―by what warrant‖ is he holding such office. If the person to whom the
question is put is able to satisfy the Court that he holds the office under the
authority of law, then an action for quo warranto is to be dismissed. On the
other hand, if the answer is unsatisfactory and the person occupying the
public office is unable to demonstrate the authority under which he is so
occupying the office, then the Court shall issue a writ to oust him from that
office. In the present case, we find that the respondent No. 2 has been
appointed by the President by warrant under his hand and seal. He has been
appointed after following the well-established procedure and convention for
appointments of CAGs. Therefore, in our view, the respondent No. 2 has
been able to show satisfactorily as to by what authority he holds and
occupies the public office of CAG. He was appointed after following the
conventional practice, as indicated above and by a warrant issued by the
President under his hand and seal.
45. We may also take note of the Supreme Court decision in the case of
M. Manohar Reddy v. Union of India: (2013) 3 SCC 99. In that case, a
petition under Article 32 of the Constitution of India had been filed
purportedly in public interest seeking a writ in the nature of quo warranto for
quashing the appointment of the respondent No. 3 therein as a Judge of the
High Court of Andhra Pradesh. The Supreme Court in M. Manohar Reddy
(supra) referred to its earlier decision in the case of Mahesh Chandra Gupta
v. Union of India: (2009) 8 SCC 273. In that case, the Supreme court had
examined the class of cases relating to appointments of High Court judges
that might fall under judicial scrutiny and concluded that judicial review
may be called for on two grounds, namely, (i) ―lack of eligibility‖ and (ii)
―lack of effective consultation‖. In M. Manohar Reddy (supra), the
Supreme Court held that ―eligibility‖ is a matter of fact, whereas suitability
is a matter of opinion. It was further observed that in cases involving ―lack
of eligibility‖ a writ of quo warranto would certainly lie. One reason being
that ―eligibility‖ was not a matter of subjectivity. On the other hand, the
Supreme Court observed that ―suitability‖ or ―fitness‖ of a person to be
appointed as a Judge of the High Court involving his character, his integrity,
his competence and the like were matters of opinion.
46. In the present case also, we must bear this distinction in mind. We
cannot sit in judgment over the suitability of the respondent No. 2 to be
appointed as the CAG. Judicial review must be limited to considering as to
whether the respondent No. 2 was eligible to be appointed as the CAG. Of
course, as the high constitutional post of a CAG is an integrity institution, an
incumbent must have the qualities of competence and integrity. There is no
prescribed criteria as to what qualifications a person must possess before he
is considered for the post of the CAG. In fact, there can be none as amply
demonstrated by the constitutional debates referred to by us earlier in this
judgment. Of course, the person being considered for the position of the
CAG must have a comprehensive knowledge of the entire administration.
There is nothing on record to suggest that the respondent No.2 does not have
a comprehensive knowledge of the entire administration. As pointed out by
the respondents, the respondent No. 2 has had about four decades of
administrative experience in different departments of the Government. He
has had an unblemished record and, therefore, the integrity aspect cannot
also be doubted. The only reference in the CAG report with regard to the
purchase of helicopters for VVIPs was to be found in two places which we
have outlined above and, none of them, in our view, could be regarded as an
indictment or implying ineligibility of respondent No. 2. Thus, neither on
integrity nor on competence, is there any material to substantiate the plea of
the petitioners that the respondent No. 2 was not eligible for appointment as
the CAG. The manner in which the President functions in appointing the
CAG is also clear-cut inasmuch as he acts on the aid and advice of the
Council of Ministers. As pointed out above, the practice adopted for the
appointment of the CAG is that a shortlist emanates from the Cabinet
Secretary. It is approved by the Finance Minister and placed before the
Prime Minister who, then, recommends one name from that list to the
President. If the President approves the same, the appointment of the CAG is
made by warrant under the hand and seal of the President. The present case
is not one where, as in CVC case (supra), relevant material had not been
considered. In the CVC case (supra), it may be remembered, the DoPT
notings with regard to initiation of disciplinary proceedings and the
pendency of a criminal case against the person being considered for
appointment, were ignored and not considered. These constituted relevant
materials and whenever relevant materials are not considered, the action can
be said to be arbitrary. But, this is not the case in the appointment of the
respondent No. 2 as the CAG. There is no disciplinary proceeding pending
against him. There is no criminal case pending against him. There is only a
supposition on the part of the petitioners that as he had dealt with defence
procurements in his various capacities in the past, there might be a conflict
of interest when he prepares audit reports in respect of the defence
procurements. This is merely a surmise, conjecture and presumption on the
part of the petitioners insofar as the audit report in respect of purchase of
helicopters is concerned. That, as we have pointed out above, has already
been tabled in Parliament. With regard to conflict of interest, it may be
pertinent to note that any civil servant would have served in various
departments and Ministries of the Government and any of those Ministries
could be the subject matter of an audit report of the CAG. Merely because a
person has served in those departments would not constitute a ground for
raising the plea of conflict of interest.
VI. Conlcusion
47. For the foregoing reasons, we are of the view that a writ of quo
warranto does not lie for quashing the appointment of the respondent No. 2
to the post of CAG. The appointment did not, in our view, violate the
principles of institutional integrity nor was the appointment arbitrary. As
such, the writ petitions are dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J
VIBHU BAKHRU, J
August 13, 2014
SR
