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       REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 1088 OF 2017

Common Cause  .... Petitioner(s)

Versus

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

                       O R D E R  R.K. Agrawal, J.

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

the petitioner, Common Cause, a Registered Society, through

its President Shri Kamal Kant Jaswal, questions the validity of

the  order  dated  22.10.2017  issued  by  Secretariat  of  the

Appointments  Committee  of  the  Cabinet,  Department  of

Personnel  and  Training  (DoPT)  appointing  Shri  Rakesh

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

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

appointment has been made illegally, arbitrarily, mala fide and

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in violation of the principles of  impeccable and institutional

integrity.

2) We have heard learned Shri Prashant Bhushan, learned

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

Attorney General appearing for the Union of India.

3) Shri Prashant Bhushan, learned counsel contended that

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

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

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

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

4) Learned counsel further contended that the CBI has been

established under the Delhi Special Police Establishment Act,

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

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

was amended in 2003 vide Central Vigilance Commission Act,

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

post  of  Superintendent  of  Police  shall  be  appointed  by  the

Central Government on the recommendations of the Central

Vigilance Commissioner, the Vigilance Commissioners and two

Secretaries to the Government of India.   

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

Lokayuktas  Act,  2013  to  provide  for  a  mechanism  for  the

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

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

the  present  petition,  the  selection  and  appointment  of  the

Special Director, CBI is under challenge and not the selection

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

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

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

of Superintendent of Police and above reads as under:-

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“4C. Appointment for posts of Superintendent of Police and above extension and curtailment of their tenure, etc. — (1)The  Central  Government  shall  appoint  officers  to  the

posts of the level of Superintendent of Police and above except  Director,  and  also  recommend  the  extension  or curtailment  of  the  tenure  of  such  officers  in  the  Delhi Special Police Establishment, on the recommendation of a Committee consisting of:-

a) The  Central  Vigilance  Commissioner             – Chairperson

b) Vigilance Commissioners                              -     Members c) Secretary  to  the  Government  of  India  in  charge  of  the

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

Department of Personnel    -       Member

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

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

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

Police and above has to be made by the Selection Committee

in  consultation  with  the  Director,  CBI.   Shri  Prashant

Bhushan, relying upon the news reports dated 22.10.2017 in

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

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

24.10.2017  published  in  ‘The  Pioneer’  submitted  that  no

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decision was taken by the Selection Committee in its meeting

held on 21.10.2017 regarding the appointment of Shri Rakesh

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

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

Appointments Committee of the Cabinet (ACC) is wholly illegal

and contrary to law.  

7) Learned  counsel  for  the  petitioner,  relying  upon  the

diaries and other papers seized in the raid conducted in the

premises  of  Sterling  Biotech  and  Sandesara  Group  of

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

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

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

column of details of known/suspected/unknown accused with

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

public  servant  and private  persons”,  contended that  in  any

event Respondent No. 2 could not have been recommended for

appointment as Special Director, CBI as the matter is under

investigation.   

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

in  Supreme  Court  Advocates-on-Record  Association  and

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

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

the views of the persons consulted.   

9) Learned counsel for the petitioner further relied upon a

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

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

submission  that  institution  is  more  important  than  an

individual and the decision to recommend has got to be an

informed decision keeping in mind that the institution has to

perform an important function.   

10) Learned  counsel  further  contended  that  the  son  of

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

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

Manager  (papers  and  diaries  of  which  Company  had  been

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

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

Sandesaran Group of Companies.  He also relied upon a news

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reported in the Indian Express dated 21.11.2017 wherein a

Professor of the University of London had expressed doubt and

concern  about  the  working  of  the  Vigilance  Commission

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

promotion to bring home the point that the appointment of

Shri Rakesh Asthana – Respondent No. 2 as Special Director

could not have been made at all.

11) Learned Attorney General for India placed before us the

Minutes  of  the  Selection  Committee  Meeting  held  on

21.10.2017  in  the  Office  of  the  Central  Vigilance

Commissioner  and  submitted  that  the  Selection  Committee

had  considered  the  confidential  letter  dated  21.10.2017

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

the meeting.  The Selection Committee had given good reasons

for not accepting the contents of the letter submitted by the

Director,  CBI  and  recommended  Shri  Rakesh  Asthana  for

appointment as Special Director, CBI.  He further submitted

that the CBI itself had moved the proposal on 06.07.2017 for

appointment of Shri Rakesh Asthana as a suitable candidate

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

Shri  Rakesh  Asthana  was  holding  the  post  of  Additional

Director, CBI before being appointed as Special Director, CBI

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

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

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

Zone,  Chennai  Zone  &  Chandigarh  Zone.   In  the  above

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

of scam cases including Augusta Westland Case, Ambulance

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

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

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

Bihar and Jharkhand.  He is  also supervising a number of

Special  Crime cases which were registered on the orders of

Courts or on the request of State Governments besides cases

against  Ministers/officials  of  Delhi  Government.   He  thus

submitted that no fault can be found in the recommendations

made  by  the  Selection  Committee.   Respondent  No.  1  had

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rightly accepted the recommendation for appointment of Shri

Rakesh Asthana as Special Director, CBI.

12) We  have  given  our  thoughtful  consideration  to  the

various pleas raised by learned counsel for the parties.

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

consultation with any person before making recommendation

for appointment to any post, consultation with that person has

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

expressed by the person with whom the consultation has to be

made depends upon various factors.  If there is no Selection

Committee and the appointing authority is required to consult

with some other Constitutional/Statutory authority then the

question of  giving  primacy to  the  opinion expressed  by  the

person with whom the consultation is to be made exists.   

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

constituted which consists of  high officials and consultation

has to be made with another person of  the Department for

which recommendation for appointment is to be made, in that

event, the consultation is only a process of discussion which

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has  to  be  taken  into  consideration  while  making

recommendation by  the  Selection Committee.   It  cannot  be

said to have a primacy.   

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

held on 21.10.2017, the Selection Committee had discussed

the note submitted by the Director, CBI and also discussed

the  same  with  him  as  would  be  clear  from  the  Minutes

reproduced hereinbelow:-

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

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misconducts.   The  Committee  has  also  noted  the decisions of the Courts in respect of such documents.”

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

under:-

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

letter dated 21.10.2017 enclosing an unsigned note on M/s

Sterling Biotech Ltd. and related entities and that the entries

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

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

was also discussed with the Director, CBI.

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

papers that the person mentioned therein is the same person

under  consideration  for  appointment  and  there  is  nothing

about the veracity of the contents of the document.

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

moved  the  present  proposal  on  06.07.2017  categorically

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

suitable to hold the post of Special Director, CBI.

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

has  been brought  on record and the  Committee  decided to

recommend the name of Shri Rakesh Asthana for appointment

as Special Director, CBI.

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

Vigilance Commission does not take cognizance of complaints

received  just  on  the  verge  of  appointments  or  promotions

unless they are proven misconducts.

(vii) The  decision  taken  by  the  Selection  Committee  was

unanimous.

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

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

the fact that there is vital difference between judicial review

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

that consultation is beyond the scope of judicial review though

lack  of  effective  consultation  could  fall  within  the  scope  of

judicial review.

18) We cannot question the decision taken by the Selection

Committee  which  is  unanimous  and  before  taking  the

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

and  it  is  based  on  relevant  materials  and  considerations.

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

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

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

Asthana  for  the  post  of  Special  Director,  after  taking  into

consideration  his  service  record  and  work  and  experience.

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

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

and electronic media that no decision was taken with respect

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

meeting of  the Selection Committee held on 21.10.2017 are

factually incorrect.  Likewise, the statement of the Professor of

the  University  of  London  reported  in  the  Indian  Express

appears  to  be  based  on the  newspaper  reports  which have

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

substance.     

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

considered  opinion  that  the  appointment  of  Shri  Rakesh

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

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

petition fails and is dismissed.

...…………………………………J.             (R.K. AGRAWAL)

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

NEW DELHI; NOVEMBER 28, 2017.  

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