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Central Vigilance Commission Act, 2003:Object of its enactment - Discussed. s.4(1), proviso - Appointment of respondent no.2 (Shri P.J. Thomas) as Central Vigilance Commissioner on recommendation of the High Powered Committee - Held: Is non est in law and is quashed. s.4(1), proviso - Recommendation under - Primary consideration for making the recommendation - Duty of the High Powered Committee (HPC) - Held: If the institutional competency would be adversely affected by pending criminal proceedings against the candidate and by that touchstone the candidate stands disqualified then it is the duty of the HPC not to recommend such a candidate - While making the recommendation, the HPC performs a statutory duty - 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 - The object and purpose of the 2003 Act is to have an integrity Institution like which is in-charge of vigilance administration and which constitutes an anti-corruption mechanism - The 2003 Act confers autonomy and independence to the institution of so that the Central Vigilance Commissioner could act without fear or favour - The institution is more important than an individual - 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 - The HPC has, therefore, to take into consideration the values, independence and impartiality of the Institution - In the instant case, this vital aspect was not taken into account by the HPC while recommending the name of respondent no.2 (Shri P.J. Thomas) as Central Vigilance Commissioner - The entire emphasis was placed by the eve, the DoPT and the HPC only on the bio-data of the empanelled candidates - None of these authorities looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC - All the notings of DoPT observed that penalty proceedings may be initiated against respondent no.2 . However, such notings were not considered in juxtaposition with the clearance of CVC - Even in the brief submitted to the 1-IPC by DoPT, there was no reference to the said noting- In the C. V. of respondent no.2 also there was no reference to the earlier notings of DoPT recommending initiation of penalty proceedings against him - Therefore, even on personal integrity, the HPC did not consider the relevant material and, therefore, the recommendation of name of respondent no. 2 was non est in law - Penal Code, 1860 - s.120-B - Prevention of Corruption Act - s.13(1)(d).s.4(1) - Advice tendered to the President by the Prime Minister regarding appointment of the Central Vigilance Commissioner - Binding effect of - Held: Central Vigilance Commissioner is appointed u/s.4(1) by the President by warrant under her hand and seal after obtaining the recommendation of the HPC, consisting of the Prime Minister as the Chairperson and two other Members - Although under the Act, the Central Vigilance Commissioner is appointed after obtaining the recommendation of the HPC, such recommendation has got to be accepted by the Prime Minister, who is the concerned authority u/Article 77(3), and if such recommendation is forwarded to the President u/Article 7 4, then the President is bound to act in accordance with the advice tendered - Further under the Rules of Business the concerned authority is the Prime Minister . Therefore, the advice tendered to the President by the Prime Minister regarding appointment of the Central Vigilance Commissioner will be binding on the President - Constitution of India, 1950 - Articles 7 4, 77.s.4(1), proviso, s.4(2) - Unanimity or consensus u/s.4(2). Held: Under proviso to s.4(1), Parliament has put its faith in the HPC consisting of the Prime Minister, the Minister for Home Affairs and the Leader of the Opposition in the House of the People - Such Committee, entrusted with wide discretion to make a choice, is expected to exercise its powers in accordance with toe Act, objectively and in a fair and reasonable manner - It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality - The 2003 Act is enacted with the intention, that such Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest - Each member is presumed by the legislature to act in public interest - If veto power is given to one of the three Members, the working of the Act would become unworkable - Moreover, s. 4(2) stipulates that the vacancy in the Committee shall not invalidate the appointment - This provision militates against the argument of the petitioner that the recommendation uls.4 has to be unanimous - To accept such contention would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation - Therefore, it is incorrect to state that the recommendation/decision of name of respondent no.2 (P.J. Thomas) stood vitiated on the ground that it was not unanimous - Doctrine of reasonableness or equality.Chapter Ill - Central Vigilance Commission - Functions and powers of - Discussed.s. 3(3)(a) - Appointment of Central Vigilance Commissioner, Vigilance Commissioner - Eligibility criteria- Discussed. Setting up of CVC - Historical background and purpose behind the setting up of CVC - Discussed. Concept of integrity institution - Held: Exists in Australia, US, UK, Canada, Hongkong - CVC is an integrity institution. It is an institution statutorily created under the Act - It is to supervise vigilance administration - The Act provides for a mechanism by which the eve retains control over CBI - It is given autonomy and insulation from external influences under the Act.s. 4(2) - Appointment of Central Vigilance Commissioner, Vigilance Commissioner - Guidelines - There is no prescription of unanimity or consensus u/s. 4(2) - Therefore, if one Member of the Committee dissents, that Member should give reasons for the dissent and if the majority disagrees with the dissent the majority shall give reasons for overruling the dissent - This would bring about fairness-in- action - In future, the zone of consideration should be in terms of s.3(3) - It shall not be restricted to civil servants - All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity. The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority . The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry. The empanelling authority, while forwarding the names of the empanelled officers/persons shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse -Nothing relevant should be withheld from the Selection Committee - It would not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee - The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers - Guidelines. Administrative law: Judicial review and merit review.Difference between - Held: Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. Writ: Writ of Quo Warranto - Appointment of respondent no.2 (Shri P.J. Thomas) as Central Vigilance Commissioner on recommendation of the High Powered Committee - Writ of Quo Warranto challenging the appointment - Held: 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 - A writ of quo warranto is issued to prevent a continued exercise of unlawful authority - In the instant petition, a declaratory relief was sought besides seeking a writ of quo warranto - In the main writ petition, the petitioner prayed for issuance of any other writ, direction or order which the Court may deem fit and proper in the facts and circumstances of the case - Thus, nothing prevented the Court from issuing a writ of declaration - Further, recommendation of the HPC and, consequently, the appointment of respondent no. 2 was in contravention of the provisions of the 2003 Act - If public duties are to be enforced and rights and interests are to be protected, then the court may, in furtherance of public interest consider it necessary to inquire into the state of affairs of the subject matter of litigation in the interest of justice - Central Vigilance Commission Act, 2003.Words and phrases: Word 'recommendation' - Connotation of, in the context of Central Vigilance Commission Act, 2003. |
