COMMON CAUSE & ANR versus UNION OF INDIA & ANR.

COMMON CAUSE & ANR.

UNION OF INDIA & ANR.

(Writ Petition (C) No. 54 of 2019)

FEBRUARY 19, 2019

[ARUN MISHRA AND NAVIN SINHA, JJ.]

Delhi Special Police Establishment Act, 1946:

s. 4A – Appointment of interim Director of CBI – Challengedin petition u/Art. 32 of the Constitution – Seeking quashing of theorder appointing interim Director and also seeking direction toappoint regular Director of CBI – Plea taken that the appointmentof interim Director was not as per s.4A and was arbitrary and illegal– Held: It is apparent from the resolution passed by the HighPowered Selection Committee constituted u/s. 4A that appointmentof the interim Director was authorised by the Committee – Therefore,the appointment was not unauthorised or illegal – The petition wasfiled in undue haste without verifying the fact as to whether theappointment was authorised – Since the regular Director has beenappointed, the main prayer of the writ also stands satisfied.

Dismissing the Writ petition, the Court

HELD: It is clear from the resolution passed by the HighPowered Selection Committee on 9/10[th] January, 2019 that theappointment of interim Director had been authorised by theCommittee under section 4A of Delhi Special Police EstablishmentAct, 1946. Thus, the plea that the Committee has not authorisedthe appointment of interim Director is totally misconceived andpetitioners have failed to verify the aforesaid facts and the petitionhas been filed in undue haste without verifying the fact whetherthe appointment has been authorised by the Committee forappointment of Director constituted under section 4A of the Act.[Paras 14 and 16][1074-G; 1075-C]

2. Petitioner had also prayed for disclosure as to what wasthe process being adopted by the Government to shortlist thecandidates. In reply to the application, Petitioner No.2 was advised

Ato take recourse to appeal before the appellate authority underthe RTI Act. It appears that the petitioner has not filed any appeal/s. Therefore, there is no ground to interfere in the matter on thesaid ground too. [Paras 18 and 19][1076-B; F]

3. Since the regular Director has been appointed, the mainBprayer of the petitioner stands satisfied and there is absolutelyno justification to continue with this writ petition in the aforesaidcircumstances. [Para 20][1076-G]

Vineet Narain & Ors. v. Union of India & Anr. (1998) 1SCC 226 : [1997] 6 Suppl. SCR 595 ; Union of IndiaCv. Namit Sharma (2013) 10 SCC 359 : [2013] 13SCR 96 ; Centre for PIL & Anr. v. Union of India &Anr. 2011 (4) SCR 445 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 54 of 201.

EUnder Article 32 of the Constitution of India

K. K. Venugopal, Attorney General, Tushar Mehta, ASG,Rajat Nair, R. Balasubramaniam, Ms. Shraddha Deshmukh,Kanu Agrawal, Rajeev Ranjan, A. K. Sharma, Ankur Talwar,Ms. Uttara Babbar, Ms. Bhavana Duhoon, Prashant Bhushan,FRohit Kumar Singh, Ms. Cheryl D’Souza, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1. The writ petition has been filed under Article 32 of theGConstitution of India seeking issuance of writ of mandamus to directUnion of India to appoint regular Director of CBI forthwith by followingthe procedure laid down in section 4A of the Delhi Special PoliceEstablishment Act, 1946. Prayer has also been made to quash the orderdated 10.1.2019 issued by Union of India appointing Mr. NageshwarRao as the interim Director of CBI. further prayer has been made toH

issue appropriate writ or direction to the Union of India to ensure that allrecords of deliberations and rational criteria of shortlisting and selectionof the Director, CBI be properly recorded and made available to citizensin consonance with the provisions of the RTI Act. further prayer hasbeen made to direct Union of India to ensure transparency in shortlisting,selection and appointment process of Director, CBI.

2. It is averred in the petition that the Government of India hasfailed to appoint Director of CBI as per section 4A of the Delhi SpecialPolice Establishment Act, 1946, and has instead appointed Mr.Nageshwar Rao as the interim Director of CBI in an arbitrary and illegalmanner.

3. It is further averred that petitioner no.1, Common Cause is aregistered society and petition has been filed in bona fide public interest.However, the average annual income of the society in the last 3 financialyears is approximately Rs.1.17 crores. Petitioner No.2 is an RTI activistand had filed applications under the Right to Information Act, 2005seeking information about the process of appointment of the new Directorof CBI in terms of the process adopted for shortlisting candidates, if any,minutes of meetings of the search and selection committee, none ofwhich were provided to her in violation of the RTI Act. The averageannual income of petitioner No.2 for the last three financial years isabout Rs.5 lakhs. The petitioners have no private/oblique motive.Petitioners have not made any representation to the respondent in thisregard because of extreme urgency of the matter in issue except for theletter written by Common Cause on 9.1.2019 for initiating the process ofappointment of regular Director, CBI.

4. It is also averred that CBI is the premier investigation agency inthe country. It investigates corruption-related offenses connected withthe Central Government and also cases connected with State Governmententities. This Court has entrusted important cases of corruption andviolation of human rights to CBI for investigation. The Director of CBIis the head of the organisation. He supervises all the work and isresponsible for the constitution of investigating teams for probing cases.This Court and the Parliament have made determined efforts to enhancethe functional autonomy of CBI Director and limit the extent of executivediscretion in the matter of appointment of this key functionary.

A5. In the case of Vineet Narain & Ors. v. Union of India &Anr. (1998) 1 SCC 226, this Court issued directions to insulate the CBIfrom extraneous influence. This Court directed that there should be aselection committee to identify panel of names for appointment ofDirector, CBI and thereafter the final selection is to be made by theAppointments Committee of Cabinet (ACC). CBI Director would haveBa fixed tenure of 2 years. Said direction was issued by this Court toensure that ad-hocism in the appointment and functioning of CBI Directoris eliminated and independence is maintained.6. Accordingly, in 2003 amendments were made to the DSEP Actfollowing Vineet Narain’s case (supra). The provisions were furtherCamended in 2013 to the DSPE Act through the Lokpal and LokayuktasAct to further insulate the selection committee from governmentinfluence. The CBI Director is to be appointed by the Central Governmenton the recommendations of committee comprising (a) the PrimeMinister-Chairperson, (b) the Leader of Opposition (Member) and (c)Dthe Chief Justice of India or any Judge of Supreme Court nominated byhim. The Act was further amended in November 2014 to provide for theLeader of the single largest Opposition Party in Lok Sabha to be memberof the selection committee in case no Leader of Opposition is recognised.

7. Section 4A of the Act provides for constitution of the committee.ESame is extracted hereunder:

“4A. Committee for appointment of Director –

(1)The Central Government shall appoint the Director on therecommendation of the Committee consisting of –

(a)the Prime Minister – Chairperson.

(b)the Leader of Opposition 12 recognised as such in the Houseof the People or where there is no such Leader of Opposition,then, the Leader of the single largest Opposition Party inthat House – Member

G(c)the Chief Justice of India or Judge of the Supreme Courtnominated by him – Member.

(2)No appointment of Director shall be invalid merely byreason of any vacancy or absence of Member in theCommittee.

(3)The Committee shall recommend panel of officers –

(a)on the basis of seniority, integrity, and experience in theinvestigation of anti-corruption cases; and

(b)chosen from amongst officers belonging to the Indian PoliceService constituted under the All-India Services Act, 1951(61 of 1951)

for being considered for appointment as the Director.”

8. This Court in C.A. No.4303/2002 has clarified that as regardsseniority mentioned in section 4A of the Delhi Special Police EstablishmentAct, 1946, ordinarily all the IPS officers of the seniormost four batchesin the service on the date of retirement of CBI Director, irrespective oftheir empanelment, shall be eligible for consideration for appointment tothe post of Director, CBI.

9. Challenge has been made to the appointment of Mr. NageshwarRao as interim Director of CBI on the ground that on 23.10.2018, 2separate orders were issued by the Central Vigilance Commission andthe Govt. of India. The then Director of CBI Mr. Alok Verma was divestedof his powers and vide another order issued by the Government of IndiaMr. Nageshwar Rao was made Director, CBI as an interim measure.The appointment of Mr. Nageshwar Rao as interim Director was notrecommended by the selection committee. The Government bypassedthe High Powered Selection Committee and in complete contraventionof the established procedure unilaterally made the interim appointment.The order dated 23.10.2018 regarding the appointment of Mr. NageshwarRao was challenged in this Court in W.P. [C] No.1315/2018. Videjudgment dated 8.1.2019 this Court quashed the order regarding theappointment of Mr. Nageshwar Rao and relating to Mr. Alok Verma thisCourt observed :

“37. There is yet another issue of significance that arises fromthe weighty arguments advances in the course of the long debatethat has taken place. This is with regard to the application ofSection 14, 15 and 16 of the General Clauses Act, 1897 so as toconfer power in the Central Government to pass the impugnedorders including the order of appointment of an acting Director ofthe CBI. The preceding discussions and our views on the true

Aand correct meaning of the provisions contained in Sections 4A &4B of the DSPE Act leaves us convinced that the aforesaidprovisions of the General Clauses Act will have no application tothe present case in view of the clear and apparent intention to thecontrary that unequivocally flows from the aforesaid provisionsof the DSPE Act.B10. In Writ Petition (C) No.1315 of 2018, this Court granted thefollowing reliefs:

“39. Consequently, in the light of our views as expressedabove we set aside the following orders dated 23[rd] October2018.

(i)of the CVC divesting the powers, functions, duties,supervisory role etc. of Shri Alok Kumar Verma as Director,CBI.

(ii)of the Government of India, Ministry of Personnel, PublicDGrievances and Pensions, Department of Personnel &Training divesting Shri Alok Kumar Verma, Director, CBIof his functions, powers, duties and supervisory role withimmediate effect and until further orders.

(iii)of the Government of India, Ministry of Personnel, PublicEGrievances and Pensions, Department of Personnel &Training by which one Shri M. Nageshwar Rao, IPS, JointDirector, CBI has been asked to look after the duties andfunctions of Director, CBI with immediate effect.”

It is averred in the petition that the appointment of Mr.NageshwarFRao as interim CBI Director was not made on the recommendations ofthe High Powered Selection Committee. The committee was completelybypassed and had no role in the appointment of Mr. Nageshwar Raothereby rendering the appointment as illegal as it is in violation of theprocedure for appointment of Director, CBI. The order dated 10.1.2019states that the appointments committee of the Cabinet has approved theGappointment of Mr. Nageshwar Rao “as per the earlier arrangement”.As the said arrangement had been quashed by this Court as it was madein violation of procedure for CBI Director as defined in the DSPE Act,Government still invoked its earlier order which stood quashed to once

again make appointment of CBI Director, even though it is not thecompetent authority and does not have any authority to make appointment,without following the due procedure laid down in the DSPE Act. Therecommendation of High Powered Selection Committee was necessary,thus, the Government has acted completely in an arbitrary manner andin contravention of DSPE Act to appoint Mr. Nageshwar Rao.

11. It is further submitted that there is lack of transparency inthe appointment of CBI Director. This Court has given various directionsto ensure transparency in the process of shortlisting, selection andappointment of functionaries of various independent bodies like the CentralVigilance Commission and Information Commissions to prevent theappointment process being undermined behind cloak of secrecy.

12. It is further averred that this Court in Anjali Bhardwaj &Ors. v. Union of India vide its order dated 13.12.2018 directed theCentral Government to proactively disclose the details of shortlistedcandidates and the criteria followed. Transparency has to be maintainedas observed in Union of India v. Namit Sharma (2013) 10 SCC 359.Reliance has also been placed on Centre for PIL & Anr. v. Union ofIndia & Anr. — W.P. [C] Nos.348 & 355/2010. So far as theappointment of Director CBI is concerned, the Government of India hasfailed to follow proper procedure for selection and appointment. InDecember 2018 as reported by the media the Government initiated theprocess of appointment of Director, CBI as the tenure of Mr. Alok Vermawas set to finish on 31.1.2019. Petitioner No.2 filed applications underthe RTI Act seeking information about meetings of the SelectionCommittee, including the date of the meetings, copy of the agenda ofmeetings, copy of Minutes of meetings, details of the persons who attendedeach meeting, details of the procedure adopted by the Government toshortlist candidates for consideration by the Selection Committee etc.but no such information had been disclosed. No such copy of shortlistedcandidate was provided. Government has responded summarising thedirections of this Court in C.A. No.4303/2002 regarding clarification ofseniority amongst all the IPS officers of senior-most 4 batches in serviceon the date of retirement of the Director, CBI which were needed to beconsidered for filling up the post and giving information about thecomposition of the Selection Committee under the DSPE Act. Requestdated 19.12.2018 (P5) has been placed on record. On 9.1.2019 prayer

Awas made to the Prime Minister and the Leader of the largest party inOpposition to initiate the process for appointment of regular CBI Directorhence the petition has been filed.

13. After several recusals by different Benches, ultimately, thecase was taken up on 1.2.2019 by this Court on which date the argumentsBwere heard at some length. It was pointed out by Mr. K.K. Venugopal,learned Attorney General for India that High Powered Committee wasscheduled to meet on the same day in connection with the appointmentof Director of CBI. The case was adjourned to 6.2.2019. However,during hearing on 1.2.2019, the Minutes of the High Powered SelectionCommittee were placed before the court and it was made clear by theCAttorney General for India that the said Committee by majority hasdecided to authorise Government of India to appoint an interim Directorwhile passing resolution and the counsel for the petitioner was told bythe Court of such resolution having been passed by the Committee. Onthat, he had conceded that the ground that Committee under Section 4ADhas not authorised appointment does not survive. Following is the operativepart of the resolution dated 9[th] /10[th] January, 2019:

“(i) Shri Alok Kumar Verma be transferred from the post ofDirector, CBI and given suitable assignment for the residualperiod of his present term ending on 31.01.2019.E(ii) the Central Government may post suitable officer to lookafter the duties of the Director, CBI till the appointment of newDirector, CBI.”

14. It is apparent from the decision of the committee under Section4A that the Government was authorised to post suitable officer asFinterim Director due to the vacancy caused by shifting of Mr. Alok Verma.Thus, the submission raised in the petition on behalf of the petitionersthat the HPSC has not authorised the appointment of interim Director istotally misconceived and petitioners have failed to verify the aforesaidfacts and the petition has been filed in undue haste without verifying theGfact whether the appointment has been authorised by the Committee forappointment of Director constituted under section 4A of the DSPE Act.

15. Unfortunately after what transpired in the court on 1.2.2019certain tweets were made by learned counsel appearing on behalf of

Common Cause and another with respect to which the Attorney Generalhas filed contempt petition as well as the Union of India. It was tweetedthat the Minutes of the said meeting had been forged, the Court wasmisled and there had been no authorisation by the Committee constitutedunder section 4A about appointment of interim Director. As to the tweetsmade, the contempt petitions have been filed in which notice has beenissued. Effect of the tweets during the pendency of the writ petition isthe subject matter of the contempt petition and the same is to beconsidered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such werefrain to comment in the petition on the submission as to tweets.

16. It is clear from the resolution passed by the Committee on 9/10[th] January, 2019 that the appointment of interim Director had beenauthorised by the Committee under section 4A. Thus, it cannot be saidto be unauthorised and illegal in any manner whatsoever. The submissionraised that the Selection Committee had not authorised the appointmentof interim Director is fallacious on the face of the record and ismisconceived in view of the said resolution. We need not go into thelarger question whether in such exigency it was necessary to have sucha resolution for the appointment of Interim Director by SelectionCommittee as that does not arise for decision in this case as Committeehas passed the aforesaid resolution.

17. With respect to RTI application that was filed by petitionerNo.2, it had been replied on 19.12.2018 as follows :

“Please refer to your online RTI application bearing registrationNo. DOP&T/R/2018/56336 dated 5.12.2018 information underRTI Act, 2005.

2. It is informed that as per this Department’s Executive OrderNo.230/14/99-DSPE dated 8.7.2004 issued in pursuance ofHon’ble Supreme Court’s directions dated 20.4.2004 given in CANo. 4303/2002, all the IPS officers of the senior most 4 batches inservice on the date of retirement of the (incumbent) Director,CBI are needed to be considered for selection to the post ofDirector, CBI. It is further informed that as per Section 4(A)(1)of the DSPE Act, 1946, as amended by the Lokpal and LokayuktasAct, 2013 (No.1 of 2014) (copy enclosed), the Central Governmentappoints the Director, CBI on the recommendation of the

ACommittee consisting of members as prescribed for the purposeunder the ibid section.

3. As per Section 19 of RTI Act, 2005, an appeal against theabove decision would lie before the 1[st] Appellate Authority Ms.Ashwini Dattatraya Thakre, Deputy Secretary (AVD-II), NorthBBlock, New Delhi within 30 days of receipt of this letter.”

18. Petitioner had filed yet another application on 25.12.2018 inwhich it was prayed that what was the process being adopted by theGovernment to shortlist of the candidates, copy of shortlisting preparedbe disclosed, following reply was sent on 2.1.2019 :

“Please refer to your online RTI application bearing registrationNo. DOP&T/R/2018/56394 & DOP&T/R/2018/56397 dated25.12.2018 information under RTI Act, 2005.

2. It is informed that as per this Department’s Executive OrderNo.230/14/99-DSPE dated 8.7.2004 issued in pursuance ofDHon’ble Supreme Court’s directions dated 20.4.2004 given in CANo. 4303/2002, amongst all the IPS officers of the senior most 4batches in service on the date of retirement of the (incumbent)Director, CBI are needed to be considered for filling up the postof new Director, CBI. The process of selection of new DirectorEin CBI has not attained finality.

3. As per Section 19 of RTI Act, 2005, an appeal against theabove decision would lie before the 1[st] Appellate Authority Ms.Ashwini Dattatraya Thakre, Deputy Secretary (AVD-II), NorthBlock, New Delhi within 30 days of receipt of this letter.”

F19. Petitioner No.2 was advised by the aforesaid communicationin case she was aggrieved, to take recourse to appeal before the appellateauthority under the RTI Act. It appears that the petitioner has not filedany appeal/s. In view of letters, we find no ground to interfere in thematter on the said ground too.

20. On the one hand the petitioner asked on 10.1.2019 for anappointment of regular Director and that meeting be convened at theearliest to appoint regular Director. We find that since the regular Directorhas been appointed the main prayer of the petitioner stands satisfied andthere is absolutely no justification to continue with this writ petition in theaforesaid circumstances. In case the due process has not been followed

in the appointment, it is always open to any incumbent, if so advised, toquestion the appointment in accordance with law but not in the routinemanner and undue haste as shown in the petition.

21. Accordingly, we find no ground to interfere with this writpetition and the same is hereby dismissed. Parties are left to bear theirown costs as incurred.

Kalpana K. Tripathy

Writ petition dismissed.