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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) No. 348 OF 2010

Centre for PIL & Anr. …  Petitioner(s)

       versus

Union of India & Anr.           …  Respondent(s)

with Writ Petition (C) No. 355 of 2010

J U D G M E N T

S. H. KAPADIA, CJI

Introduction      

1. The two writ petitions filed in this Court under Article  

32  of  the  Constitution  of  India  give  rise  to  a  substantial  

question of law and of public importance as to the legality of  

the  appointment  of  Shri  P.J.  Thomas  (respondent  No.  2  in  

W.P.(C) No. 348 of 2010) as Central Vigilance Commissioner  

under Section 4(1) of the Central Vigilance Commission Act,  

2003 (“2003 Act” for short).

2. Government  is  not  accountable  to  the  courts  in  

respect of policy decisions.  However, they are accountable for

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the legality of such decisions.  While deciding this case, we  

must keep in mind the difference between legality and merit as  

also  between  judicial  review  and  merit  review.   On  3rd  

September,  2010,  the  High  Powered  Committee  (“HPC”  for  

short),  duly constituted under the proviso to Section 4(1) of  

the 2003 Act, had recommended the name of Shri P.J. Thomas  

for  appointment  to  the  post  of  Central  Vigilance  

Commissioner.  The validity of this recommendation falls for  

judicial  scrutiny  in  this  case.   If  a  duty is  cast  under  the  

proviso  to  Section  4(1)  on  the  HPC  to  recommend  to  the  

President the name of the selected candidate, the integrity of  

that decision making process is got to ensure that the powers  

are exercised for the purposes and in the manner envisaged by  

the  said  Act,  otherwise  such  recommendation  will  have  no  

existence in the eye of law.

Clarification

3. At the very outset we wish to clarify that in this case  

our  judgment  is  strictly  confined  to  the  legality  of  the  

recommendation  dated  3rd September,  2010  and  the  

appointment based thereon.  As of date, Shri P.J. Thomas is

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Accused No. 8 in criminal case CC 6 of 2003 pending in the  

Court of Special Judge, Thiruvananthapuram with respect to  

the offences under Section 13(2) read with Section 13(1)(d) of  

the  Prevention  of  Corruption  Act,  1988  and  under  Section  

120B of the Indian Penal Code (“IPC” for short)  [hereinafter  

referred  to  as  the  “Palmolein  case”].   According  to  the  

petitioners herein, Shri P.J. Thomas allegedly has played a big  

part  in  the  cover-up  of  the  2G  spectrum  allocation  which  

matter is subjudice.  Therefore, we make it clear that we do  

not wish to comment in this case on the pending cases and  

our judgment herein should be strictly understood to be under  

judicial review on the legality of the appointment of respondent  

No. 2 and any reference in our judgment to the Palmolein case  

should not  be understood as our observations on merits  of  

that case.  

Facts

4. Shri  P.J.  Thomas  was  appointed  to  the  Indian  

Administrative  Service  (Kerala  Cadre)  1973  batch  where  he  

served  in  different  capacities  with  the  State  Government  

including as Secretary, Department of Food and Civil Supplies,

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State of Kerala in the year 1991.  During that period itself, the  

State of Kerala decided to import 30,000 MT of palmolein.  The  

Chief Minister of Kerala, on 5th October, 1991, wrote a letter to  

the  Prime  Minister  stating  that  the  State  was  intending  to  

import Palmolein oil and that necessary permission should be  

given by the concerned Ministries.  On 6th November, 1991,  

the Government of India issued a scheme for direct import of  

edible oil for Public Distribution System (PDS) on the condition  

that an ESCROW account be opened and import clearance be  

granted as per the rules.   Respondent No. 2 wrote letters to  

the  Secretary,  Government  of  India  stating  that  against  its  

earlier demand for import of 30,000 MT of Palmolein oil, the  

present minimum need was 15,000 MT and the same was to  

meet  the  heavy  ensuing  demand  during  the  festivals  of  

Christmas  and  Sankranti,  in  the  middle  of  January,  1992,  

therefore, the State was proposing to immediately import the  

said quantity of Palmolein on obtaining requisite permission.  

The price for the same was fixed on 24th January, 1992, i.e.,  

56 days after  the execution of  the agreement.    The Kerala  

State Civil Supplies Corporation Ltd. was to act as an agent of

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the State Government for import of Palmolein.   The value of  

the Palmolein was to be paid to the suppliers only in Indian  

rupees.  Further, the terms governing the ESCROW account  

were to be as approved by the Ministry of Finance.   This letter  

contained  various  other  stipulations  as  well.   This  was  

responded  to  by  the  Joint  Secretary,  Government  of  India,  

Ministry of Civil Supplies and Public Distribution, New Delhi  

vide letter dated 26th November, 1991 wherein it was stated  

that it had been decided to permit the State to import 15,000  

MT of Palmolein on the terms and conditions stipulated in the  

Ministry’s circular of even number dated 6th November, 1991.  

It  was  specifically  stated  that  the  service  charges  up  to  a  

maximum of 15% in Indian rupees may be paid.  After some  

further  correspondence,  the  order  of  the  State  of  Kerala  is  

stated  to  have  been  approved  by  the  Cabinet  on  27th  

November,  1991,  and the  State  of  Kerala  actually  imported  

Palmolein  by opening  an ESCROW account  and getting  the  

import clearance at the rate of US $ 405 per MT in January,  

1992.  

5. The  Comptroller  and Auditor  General  (‘CAG’),  in  its

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report dated 2nd February, 1994 for the year ended 31st March,  

1993 took exception to the procedure adopted for import of  

Palmolein by the State Government.  While mentioning some  

alleged  irregularities,  the  CAG  observed,  “therefore,  the  

agreement entered into did not contain adequate safeguards to  

ensure that imported product would satisfy all the standards  

laid  down in  Prevention of  Food Adulteration  Rules,  1956”.  

This  report  of  the  CAG  was  placed  before  the  Public  

Undertaking  Committee  of  the  Kerala  Assembly.   The  38th  

Report  of  the  Kerala  Legislative  Assembly  -  Committee  on  

Public  Undertakings  dated  19th March,  1996,  inter  alia,   

referred to the alleged following irregularities:-

a. That the  service  fee  of  15% to meet  the fluctuation in  

exchange  rate  was  not  negotiated  and  hence  was  

excessive.   Even the price of the import product ought  

not to have been settled in US Dollars.   

b. That the concerned department of the State of Kerala had  

not invited tenders and had appointed M/s. Mala Export  

Corporation,  an associate  company of  M/s.  Power  and  

Energy  Pvt.  Ltd.,  the  company upon which the  import

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order was placed as handling agent for the import.

c. That the delay in opening of ESCROW accounts and in  

fixation of price, which were not in conformity with the  

circular issued by the Central Government had incurred  

a loss of more than Rupees 4 crores to the Exchequer.

6. The Committee also alleged that under the pretext of  

plea of urgency, the deal was conducted without inviting global  

tenders and if the material was procured by providing ample  

time by inviting global tenders, other competitors would have  

emerged with lesser rates for the import of the item, which in  

turn, would have been more beneficial.

7. The Chief Editor of the Gulf India Times even filed a  

writ petition being O.P. No. 3813 of 1994 in the Kerala High  

Court praying that directions be issued to the State to register  

an FIR on the ground that import of Palmolein was made in  

violation of the Government of India Guidelines.  However, it  

came  to  be  dismissed  by  the  learned  Single  Judge  of  the  

Kerala  High  Court  on  4th April,  1994.   Still  another  writ  

petition came to be filed by one Shri M. Vijay Kumar, who was

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MLA of  the  Opposition  in  the  Kerala  Assembly  praying  for  

somewhat similar relief.  This writ petition was dismissed by a  

learned Single Judge of the Kerala High Court and even appeal  

against that order was also dismissed by the Division Bench of  

that Court vide order dated 27th September, 1994.

8. Elections were held in the State of Kerala on 20th May,  

1996 and the Left Democratic Front formed the government.  

An FIR was registered against Shri Karunakaran, former Chief  

Minister and six others in relation to an offence under Section  

13(2)  read  with  Section  13(1)  (d)  of  the  Prevention  of  

Corruption Act, 1988 and Section 120B of the IPC.  The State  

of  Kerala  accorded its  sanction to prosecute the  then Chief  

Minister Shri Karunakaran and various officers in the State  

hierarchy,  who  were  involved  in  the  import  of  Palmolein,  

including respondent No. 2 on 30th November, 1999.

9. Shri  Karunakaran,  the  then  Chief  Minister  filed  a  

petition before the High Court being Criminal  Miscellaneous  

No.1353/1997 praying for quashing of the said FIR registered  

against him and the other officers.  Shri P.J. Thomas herein  

was not  a party  in that  petition.   However,  the High Court

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dismissed the  said writ  petition  declining to  quash the  FIR  

registered  against  the  said  persons.   In  the  meanwhile,  a  

challan  (report  under  Section  173  of  the  Code  of  Criminal  

Procedure)  had  also  been  filed  before  the  Court  of  Special  

Judge, Thiruvananthapuram and in this background the State  

of Kerala, vide its letter dated 31st December, 1999 wrote to  

the  Department  of  Personnel  and  Training  (DoPT)  seeking  

sanction  to  prosecute  the  said  person  before  the  Court  of  

competent jurisdiction.  Keeping in view the investigation of  

the case conducted by the agency, two other persons including  

Shri P.J. Thomas were added as accused Nos. 7 and 8.  

10. Shri  Karunakaran  challenged  the  order  before  this  

Court by filing a Petition for Special  Leave to Appeal,  being  

Criminal   Appeal  No.  86  of  1998,  which  also  came  to  be  

dismissed by this Court on 29th March, 2000.  This Court held  

that  “after  going  through  the  pleadings  of  the  parties  and  

keeping in view the rival submissions made before us, we are  

of  the  opinion  that  the  registration  of  the  FIR  against  the  

appellants and others cannot be held to be the result of mala  

fides or actuated by extraneous considerations.  The menace

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of  corruption  cannot  be  permitted  to  be  hidden  under  the  

carpet of the legal  technicalities…”.  The Government Order  

granting  sanction  (Annexure  R-I  in  that  petition)  was  also  

upheld  by  this  Court  and  it  was  further  held  that  “our  

observations  with respect  to  the  legality  of  the  Government  

Order are not conclusive regarding its constitutionality but are  

restricted so far as its applicability to the registration of the  

FIR against the appellant is concerned.  We are, therefore, of  

the opinion that the aforesaid Government Order has not been  

shown to be in any way illegal or unconstitutional so far as the  

rights of the appellants are concerned…”.  Granting liberty to  

the parties to raise all pleas before the Trial Court, the appeal  

was  dismissed.   In  the  charge-sheet  filed  before  the  Trial  

Court, in paragraph 7, definite role was attributed to Accused  

No.  8 (respondent  No.  2 herein)  and allegations were  made  

against him.

11. For a period of 5 years, the matter remained pending  

with  the  Central  Government  and  vide  letter  dated  20th  

December,  2004,  the  Central  Government  asked  the  State  

Government to send a copy of the report which had been filed

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before the Court of competent jurisdiction.  After receiving the  

request of the State Government, it appears that the file was  

processed  by  various  authorities  and  as  early  as  on  18th  

January, 2001, a note was put up by the concerned Under  

Secretary that a regular departmental enquiry should be held  

against Shri P.J. Thomas and Shri Jiji Thomson for imposing a  

major penalty.  According to this note, it was felt that because  

of lack of evidence, the prosecution may not succeed against  

Shri  P.J.  Thomas  but  sanction  should  be  accorded  for  

prosecution of Shri Jiji Thomson. On 18th February, 2003, the  

DoPT  had  made  a  reference  to  the  Central  Vigilance  

Commission (“CVC” for short) on the cited subject, which was  

responded to by the CVC vide their letter dated 3rd June, 2003  

and it conveyed its opinion as follows: -

“Department  of  Personnel  &  Training  may refer to their DO letter No.107/1  /2000-AVD.I dated 18.02.2003 on the  subject cited above.

2. Keeping in view the facts and  circumstances  of  the  case,  the  Commission  would  advise  the  Department of Personnel & Training to  initiate  major  penalty  proceedings  against Shri P.J. Thomas, IAS (KL:73)

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and  Shri  Jiji  Thomson,  IAS  (KL:80)  and completion of proceedings thereof  by appointing departmental IO.

3. Receipt  of  the  Commission’s  advice may be acknowledged.”

12. Despite  receipt  of  the  above  opinion  of  CVC,  the  

matter was still kept pending, though a note was again put up  

on  24th February,  2004  on  similar  lines  as  that  of  18th  

January, 2001.  In the meanwhile, the State of Kerala, vide its  

letter  dated 24th January,  2005 wrote  to the  DoPT that  for  

reasons  recorded in  the  letter,  they  wish to  withdraw their  

request  for  according  the  sanction  for  prosecution  of  the  

officers, including respondent No. 2, as made vide their letter  

dated 31st December, 1999.  The matter which was pending  

for all this period attained a quietus in view of the letter of the  

State of Kerala and the PMO had been informed accordingly.

13. In its letter dated 4th November, 2005, the State took  

the  position  that  the  allegations  made  by  the  Investigating  

Agency were invalid and the cases and request for sanction  

against Shri P.J. Thomas should be withdrawn.  

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14. On 18th May, 2006 again, the Left Democratic Front  

formed  the  Government  in  the  State  of  Kerala  with  Mr.  

Achuthanandan  as  the  Chief  Minister.   This  time  the  

Government  of  Kerala  filed  an  affidavit  in  this  Court  

disassociating itself from the contents of the earlier affidavit.   

15. Vide  letter  dated  10th October,  2006,  the  Chief  

Secretary to the Government of Kerala again wrote a letter to  

the  Government  of  India  informing  them  that  the  State  

Government  had  decided  to  continue  the  prosecution  

launched by it and as such it sought to withdraw its above  

letter dated 24th January, 2005.  In other words, it reiterated  

its request for grant of sanction by the Central Government.  

Vide  letter  dated  25th November,  2006,  the  Additional  

Secretary to the DoPT wrote to the State of Kerala asking them  

for the reasons for change in stand, in response to the letter of  

the State of Kerala dated 10th October, 2006.  This action of  

the  State  Government  reviving  its  sanction  and  continuing  

prosecution against Shri Karunakaran and others, including  

Respondent  No.  2,  was challenged by Shri  Karunakaran by  

filing Criminal Revision Petition No. 430 of 2001 in the High

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Court of Kerala on the ground that the Government Order was  

liable  to  be  set  aside  on  the  ground  of  mala  fide  and  

arbitrariness.  This petition was dismissed by the High Court.  

In its judgment, the High Court referred to the alleged role of  

Shri  P.J.  Thomas in the Palmolein case.   The action of the  

State  Government  or  pendency  of  proceedings  before  the  

Special Judge at Thiruvananthapuram was never challenged  

by  Shri  P.J.  Thomas  before  any  court  of  competent  

jurisdiction.  The request of the State Government for sanction  

by  the  Central  Government  was  considered  by  different  

persons in the Ministry and vide its noting dated 10th May,  

2007,  a  query  was  raised  upon  the  CVC  as  to  whether  

pendency  of  a  reply  to  Ministry’s  letter,  from  State  

Government  in  power,  on  a  matter  already  settled  by  the  

previous  State  Government  should  come  in  the  way  of  

empanelment of these officers for appointment to higher post  

in the Government.  Rather than rendering the advice asked  

for, the CVC vide its letter dated 25th June, 2007 informed the  

Ministry as follows :

“Department  of  Personnel  & Training may

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refer to their note dated 17.05.2007, in file  No.107/1/2000-AVD-I,  on  the  above  subject.

2. The case has been re-examined and  Commission has observed that  no case  is  made out against S/Shri P.J. Thomas and  Jiji  Thomson  in  connection  with  alleged  conspiracy with other public servants and  private persons in the matter of import of  Palmolein  through  a  private  firm.   The  abovesaid officers acted in accordance with  a  legitimately  taken  Cabinet  decision  and  no  loss  has  been  caused  to  the  State  Government and most important, no case is  made out that they had derived any benefit  from the transaction. (emphasis supplied)

3. In  view  of  the  above,  Commission  advises  that  the  case  against  S/Shri  P.J.  Thomas and Jiji Thomson may be dropped  and matter be referred once again thereafter  to  the  Commission  so  that  Vigilance  Clearance  as  sought  for  now  can  be  recorded.

4. DOPT’s  file  No.107/1/2000-AVD-I  along  with  the  records  of  the  case,  is  returned  herewith.   Its  receipt  may  be  acknowledged.  Action taken in pursuance  of Commission’s advice may be intimated to  the Commission early.”

16. It may be noticed that neither in the above reply nor  

on  the  file  any  reasons  are  available  as  to  why  CVC  had  

changed its earlier opinion/stand as conveyed to the Ministry

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vide its letter dated 3rd June, 2003.  After receiving the above  

advice of CVC, the Ministry on 6th July, 2007 had recorded a  

note in the file that as far as CVC’s advice regarding dropping  

all  proceedings is  concerned,  the Ministry  should await  the  

action  to  be  taken  by  the  Government  of  Kerala  and  the  

relevant courts.   

17. The legality and correctness of the order of the Kerala  

High Court dated 19th February, 2003 was questioned by  Shri  

Karunakaran by filing a petition before this Court on which  

leave was granted and it  came to be registered as Criminal  

Appeal No. 801 of 2003.  This appeal was also dismissed by  

this Court vide its order dated 6th December, 2006.  However,  

the parties were given liberty to raise the plea of mala fides  

before  the  High  Court.   Even  on  reconsideration,  the  High  

Court dismissed the petition filed by Shri Karunakaran raising  

the plea of mala fides vide its order dated 6th July, 2007.  The  

High Court had, thus, declined to accept that action of the  

State Government in prosecuting the persons stated therein  

was actuated by mala fides.  The order of the High Court was  

again challenged by Shri Karunakaran by preferring a Petition

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for Special Leave to Appeal before this Court.  This Court had  

stayed further proceedings before the Trial Court.  This appeal  

remained  pending  till  23rd December,  2010  when  it  abated  

because of unfortunate demise of Shri Karunakaran.

18. Vide  order  dated  18th September,  2007,  the  

Government  of  Kerala  appointed  Shri  P.J.  Thomas  as  the  

Chief  Secretary.   Thereafter,  on  6th October,  2008  CVC  

accorded  vigilance  clearance  to  all  officers  except  Smt.  

Parminder M. Singh.  We have perused the files submitted by  

the learned Attorney General for India.  From the said files we  

find that there are at least six notings of DoPT between 26th  

June, 2000 and 2nd November, 2004 which has recommended  

initiation of penalty proceedings against Shri P.J. Thomas and  

yet in the clearance given by CVC on 6th October, 2008 and in  

the Brief  prepared by DoPT dated 1st September,  2010 and  

placed before HPC there is no reference to the earlier notings  

of the then DoPT and nor any reason has been given as to why  

CVC had changed its views while granting vigilance clearance  

on  6th October,  2008.   On  23rd January,  2009,  Shri  P.J.  

Thomas was appointed as Secretary, Parliamentary Affairs to

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the Government of India.   

19. The DoPT empanelled three officers vide its note dated  

1st September, 2010.  Vide the same note along with the Brief  

the matter was put up to the HPC for selecting one candidate  

out of the empanelled officers for the post of Central Vigilance  

Commissioner.   The  meeting  of  the  HPC  consisting  of  the  

Prime  Minister,  the  Home  Minister  and  the  Leader  of  the  

Opposition was held on 3rd September, 2010.   In the meeting,  

disagreement was recorded by the Leader of the Opposition,  

despite which, name of Shri P.J. Thomas was recommended  

for appointment to the post of Central Vigilance Commissioner  

by  majority.   A  note  was  thereafter  put  up  with  the  

recommendation  of  the  HPC  and  placed  before  the  Prime  

Minister  which  was  approved  on  the  same  day.   On  4th  

September,  2010,  the  same  note  was  submitted  to  the  

President  who  also  approved  it  on  the  same  day.  

Consequently,  Shri  P.J.  Thomas  was  appointed  as  Central  

Vigilance Commissioner and he took oath of his office.   

Setting-up of CVC

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20. Vigilance  is  an  integral  part  of  all  government  

institutions.  Anti-corruption measures are the responsibility  

of the Central Government.  Towards this end the Government  

set up the following departments :

(i) CBI

(ii) Administrative Vigilance Division in DoPT

(iii) Domestic  Vigilance  Units  in  the  Ministries/  

Departments, Government companies, Government  

Corporations, nationalized banks and PSUs

(iv) CVC

21. Thus, CVC as an integrity institution was set up by the  

Government  of  India  in  1964  vide  Government  Resolution  

pursuant to the recommendations of Santhanam Committee.  

However, it was not a statutory body at that time.  According  

to the recommendations of the Santhanam Committee, CVC,  

in  its  functions,  was  supposed  to  be  independent  of  the  

executive.  The sole purpose behind setting up of the CVC was  

to improve the vigilance administration of the country.

22. In  September,  1997,  the  Government  of  India  

established the Independent Review Committee to monitor the

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functioning of CVC and to examine the working of CBI and the  

Enforcement Directorate.  Independent Review Committee vide  

its report of December, 1997 suggested that CVC be given a  

statutory status.   It  also recommended that the selection of  

Central  Vigilance  Commissioner  shall  be  made  by  a  High  

Powered  Committee  comprising  of  the  Prime  Minister,  the  

Home Minister and the Leader of Opposition in Lok Sabha.  It  

also recommended that the appointment shall be made by the  

President of India on the specific recommendations made by  

the HPC.  That, the CVC shall be responsible for the efficient  

functioning of CBI; CBI shall report to CVC about cases taken  

up for investigations; the appointment of CBI Director shall be  

by  a  Committee  headed  by  the  Central  Vigilance  

Commissioner; the Central Vigilance Commissioner shall have  

a minimum fixed tenure and that a Committee headed by the  

Central  Vigilance  Commissioner  shall  prepare  a  panel  for  

appointment of Director of Enforcement.

23. On 18th December, 1997 the judgment in the case of  

Vineet Narain v. Union of India [(1998) 1 SCC 226] came to  

be delivered.  Exercising authority under Article 32 read with

21

Article  142,  this  Court  in order  to implement  an important  

constitutional  principle  of  the rule of  law ordered that CVC  

shall  be  given  a  statutory  status  as  recommended  by  

Independent  Review  Committee.   All  the  above  

recommendations  of  Independent  Review  Committee  were  

ordered to be given a statutory status.   

24. The judgment in  Vineet Narain’s   case (supra)  was  

followed by the 1999 Ordinance under which CVC became a  

multi-member  Commission  headed  by  Central  Vigilance  

Commissioner.   The  1999  Ordinance  conferred  statutory  

status  on  CVC.   The  said  Ordinance  incorporated  the  

directions given by this Court in Vineet Narain’s case.  Suffice  

it  to  state,  that,  the  1999 Ordinance  stood  promulgated  to  

improve the vigilance administration and to create a culture of  

integrity  as far as government administration is concerned.   

25. The said 1999 Ordinance was ultimately replaced by  

the  enactment  of  the  2003 Act  which came into  force  with  

effect from 11th September, 2003.

Analysis of the 2003 Act  

26. The  2003  Act  has  been  enacted  to  provide  for  the

22

constitution  of  a  Central  Vigilance  Commission  as  an  

institution to inquire or cause inquiries to be conducted into  

offences alleged to have been committed under the Prevention  

of  Corruption  Act,  1988  by  certain  categories  of  public  

servants of the Central Government, corporations established  

by or under any Central Act, Government companies, societies  

and  local  authorities  owned  or  controlled  by  the  Central  

Government and for matters connected therewith or incidental  

thereto  (see Preamble).   By way of an aside, we may point out  

that in Australia, US, UK and Canada there exists a concept of  

integrity institutions.   In Hongkong we have an Independent  

Commission against corruption.  In Western Australia there  

exists a statutory Corruption Commission.  In Queensland, we  

have Misconduct Commission.  In New South Wales there is  

Police  Integrity  Commission.  All  these  come  within  the  

category of  integrity institutions.   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

23

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.   

27. For  the  purposes  of  deciding  this  case,  we  need  to  

quote the relevant provisions of the 2003 Act.     

3. Constitution  of  Central  Vigilance  Commission.-

(2) The Commission shall consist of—

(a) a  Central  Vigilance  Commissioner  —  Chairperson;

(b) not more than two Vigilance Commissioners  -Members.

(3) The Central Vigilance Commissioner and  the  Vigilance  Commissioners  shall  be  appointed  from amongst persons—

(a) who  have  been  or  are  in  an  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;

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-

24

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.

5. Terms and other conditions of service  of Central Vigilance Commissioner. -

(1) Subject to the provisions of sub-sections  (3)  and  (4),  the  Central  Vigilance  Commissioner  shall hold office for a term of four years from the  date on which he enters upon his office or till he  attains  the  age  of  sixty-five  years,  whichever  is  earlier.  The  Central  Vigilance  Commissioner,  on  ceasing  to  hold  the office,  shall  be  ineligible  for  reappointment in the Commission.

(3) The Central Vigilance Commissioner or a  Vigilance  Commissioner  shall,  before  he  enters  upon  his  office,  make  and  subscribe  before  the  President, or some other person appointed in that  behalf by him, an oath or affirmation according to  the form set out for the purpose in Schedule to  this Act.

(6) On  ceasing  to  hold  office,  the  Central

25

Vigilance Commissioner and every other Vigilance  Commissioner shall be ineligible for—

(a) any diplomatic assignment,  appointment  as  administrator  of  a  Union  territory  and  such  other  assignment  or  appointment  which  is  required by law to be made by the President by  warrant under his hand and seal.

(b) further employment to any office of profit  under the Government of India or the Government  of a State.

6. Removal of Central Vigilance Commissioner  and Vigilance Commissioner.-  (1) Subject to the  provisions of sub-section (3), the Central Vigilance  Commissioner  or  any  Vigilance  Commissioner  shall be removed from his 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  or  any  Vigilance  Commissioner, as the case may be, ought on such  ground be removed.

(3)  Notwithstanding  anything  contained  in  sub- section  (1),  the  President  may  by  order  remove  from office the Central Vigilance Commissioner or  any  Vigilance  Commissioner  if  the  Central  Vigilance  Commissioner  or  such  Vigilance  Commissioner, as the case may be,—

(a) is adjudged an insolvent; or (b) has been convicted of an offence which,  in the opinion of the Central Government, involves  moral turpitude; or (c) engages during his term of office in any  paid employment outside the duties of his office;  or (d) is, in the opinion of the President, unfit to  continue in office by reason of infirmity of mind or

26

body; or (e) has  acquired  such  financial  or  other  interest  as  is  likely  to  affect  prejudicially  his  functions as a Central Vigilance Commissioner or  a Vigilance Commissioner.

8. Functions  and  powers  of  Central  Vigilance Commission- (1) The functions and powers of the Commission  shall be to—

(a) exercise  superintendence  over  the  functioning  of  the  Delhi  Special  Police  Establishment  in  so  far  as  it  relates  to  the  investigation  of  offences  alleged  to  have  been  committed under the Prevention of Corruption Act,  1988 or an offence with which a public  servant  specified in sub-section (2) may, under the Code of  Criminal Procedure, 1973, be charged at the same  trial;

(b) give directions to the Delhi Special Police  Establishment for the purpose of discharging the  responsibility entrusted to it under sub-section (1)  of  section  4  of  the  Delhi  Special  Police  Establishment Act, 1946:

(d) inquire  or  cause  an  inquiry  or  investigation  to  be  made  into  any  complaint  against any official belonging to such category of  officials specified in sub-section (2)  wherein it  is  alleged that he has committed an offence under  the  Prevention  of  Corruption  Act,  1988  and  an  offence  with  which  a  public  servant  specified  in  subsection  (2)  may,  under  the Code of  Criminal  Procedure, 1973, be charged at the same trial;

(e) review  the  progress  of  investigations  conducted  by  the  Delhi  Special  Police  Establishment into offences alleged to have been  committed under the Prevention of Corruption Act,  1988 or the public servant may, under the Code of

27

Criminal Procedure, 1973, be charged at the same  trial;

(f) review  the  progress  of  applications  pending  with  the  competent  authorities  for  sanction  of  prosecution  under  the  Prevention  of  Corruption Act, 1988;  

(h) exercise  superintendence  over  the  vigilance administration of the various Ministries  of  the  Central  Government  or  corporations  established  by  or  under  any  Central  Act,  Government  companies,  societies  and  local  authorities  owned  or  controlled  by  that  Government:

(2)  The persons referred to in clause (d)  of  sub- section (1) are as follows:— (a) members of All-India Services serving in  connection  with  the  affairs  of  the  Union  and  Group ‘A’ officers of the Central Government;

(b) such level of officers of the corporations  established  by  or  under  any  Central  Act,  Government companies, societies and other local  authorities,  owned  or  controlled  by  the  Central  Government,  as  that  Government  may,  by  notification in the Official Gazette, specify in this  behalf:  

Provided that till such time a notification is issued  under  this  clause,  all  officers  of  the  said  corporations,  companies,  societies  and  local  authorities  shall  be  deemed  to  be  the  persons  referred to in clause (d) of sub-section (1).

11.  Power  relating  to  inquiries.  -  The  Commission shall,  while  conducting  any  inquiry  referred to in clauses (c) and (d) of sub-section (1)  of section 8, have all  the powers of a civil  court  trying a suit  under the Code of  Civil  Procedure,  1908 and in particular, in respect of the following

28

matters, namely:—

(a) summoning and enforcing the attendance of  any  person  from  any  part  of  India  and  examining him on oath;

(b) requiring  the  discovery  and  production  of  any document;

(c) receiving evidence on affidavits;

(d) requisitioning  any  public  record  or  copy  thereof from any court or office;

(e) issuing commissions for the examination of  witnesses or other documents; And  

(f) any  other  matter  which  may  be  prescribed.

THE SCHEDULE

[See section 5(3)]

Form of oath or affirmation to be made by  the  Central  Vigilance  Commissioner  or  Vigilance Commissioner:--

"I,  A.  B.,  having  been  appointed  Central  Vigilance  Commissioner  (or  Vigilance  Commissioner)  of  the  Central  Vigilance  Commission do  swear  in  the  name  of  god/  solemnly affirm that I will bear true faith  and allegiance to the Constitution of India as  by  law  established,  that  I  will  uphold  the  sovereignty  and integrity  of  India,  that  I  will  duly  and  faithfully  and  to  the  best  of  my  ability,  knowledge and judgment  perform the  duties  of  my  office  without  fear  or  favour,

29

affection or ill-will  and that I will  uphold the  constitution and the laws.".

28. On  analysis  of  the  2003  Act,  the  following  are  the  

salient features.  CVC is given a statutory status.  It stands  

established  as  an  Institution.   CVC  stands  established  to  

inquire into offences alleged to have been committed under the  

Prevention  of  Corruption Act,  1988 by  certain  categories  of  

public servants enumerated above.  Under Section 3(3)(a) the  

Central  Vigilance  Commissioner  and  the  Vigilance  

Commissioners are to be appointed from amongst persons who  

have been or are in All India Service or in any civil service of  

the Union or who are in a civil post under the Union having  

knowledge and experience in the matters relating to vigilance,  

policy  making  and  administration  including  police  

administration.  The underlined words “who have been or who  

are” in Section 3(3)(a) refer to the person holding office of a  

civil servant or who has held such office.  These underlined  

words came up for consideration by this Court in the case of  

N. Kannadasan v. Ajoy Khose and Others [(2009) 7 SCC 1]  

in which it  has been held that the said words indicate  the

30

eligibility criteria and further they indicate that such past or  

present  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.  One  

more aspect needs to be highlighted.  The constitution of CVC  

as a statutory body under Section 3 shows that CVC is an  

Institution.  The key word is Institution.  We are emphasizing  

the key word for the simple reason that in the present case the  

recommending authority (High Powered Committee) has gone  

by  personal  integrity  of  the  officers  empanelled  and not  by  

institutional integrity.   

29. Section 4 refers to appointment of  Central  Vigilance  

Commissioner and Vigilance Commissioners.  Under Section  

4(1)  they  are  to  be  appointed  by  the  President  by  warrant  

under  her  hand  and  seal.   Section  4(1)  indicates  the  

importance  of the post.  Section 4(1) has a proviso.  Every  

appointment under Section 4(1) is to be made after obtaining  

the recommendation of a committee consisting of-

(a) The Prime Minister             -   

Chairperson;

31

(b) The Minister of Home Affairs - Member;

(c) The Leader of the Opposition       in the House of the People -

Member.

30. 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

32

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.  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

33

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.   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.  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

34

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.

31. Chapter  III  refers  to  functions  and  powers  of  the  

Central Vigilance Commission. CVC exercises superintendence  

over the functioning of the Delhi Special Police Establishment  

insofar as it relates to investigation of offences alleged to have  

been committed under the Prevention of Corruption Act, 1988,  

or an offence with which a public  servant  specified in sub-

section (2) may, under the Code of Criminal Procedure, 1973  

be  charged  with  at  the  trial.   Thus,  CVC is  empowered  to  

exercise  superintendence over  the  functioning of  CBI.   It  is  

also empowered to give directions to CBI.  It is also empowered  

to review the progress of investigations conducted by CBI into

35

offences alleged to have been committed under the Prevention  

of  Corruption  Act,  1988  or  under  the  Code  of  Criminal  

Procedure  by a  public  servant.   CVC is  also  empowered  to  

exercise superintendence over the vigilance administration of  

various  ministries  of  the  Central  Government,  PSUs,  

Government  companies  etc.   The  powers  and  functions  

discharged by CVC is the sole reason for giving the institution  

the  administrative  autonomy,  independence  and  insulation  

from external influences.   

Validity of the recommendation dated 3  rd   September, 2010   

32. One  of  the  main contentions advanced on behalf  of  

Union of India and Shri P.J. Thomas before us was that once  

the CVC clearance had been granted on 6th October, 2008 and  

once the candidate stood empanelled for appointment at the  

Centre and in fact stood appointed as Secretary, Parliamentary  

Affairs and, thereafter, Secretary Telecom, it was legitimate for  

the HPC to proceed on the basis that there was no impediment  

in the way of appointment of respondent No. 2 on the basis of  

the  pending  case  which had been found to  be  without any  

substance.

36

33. We find no merit in the above submissions.  Judicial  

review seeks to ensure that the statutory duty of the HPC to  

recommend  under  the  proviso  to  Section  4(1)  is  performed  

keeping in mind the policy and the purpose of the 2003 Act.  

We are not sitting in appeal over the opinion of the HPC.  What  

we have to see is whether relevant material and vital aspects  

having nexus to the object of the 2003 Act were taken into  

account when the  decision to recommend took place  on 3rd  

September,  2010.   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  para  88  of  N.  Kannadasan  

(supra)].   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

37

of Andhra Pradesh v. Nalla Raja Reddy  (1967) 3 SCR 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)].  

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  26th June,  2000,  18th  

January,  2001,  20th June,  2003,  24th February,  2004,  18th  

October, 2004 and 2nd November, 2004 have all observed that

38

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  6th  

October, 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.   The  system  

governance  established  by  the  Constitution  is  based  on  

distribution of powers and functions amongst the three organs

39

of the State, one of them being the Executive whose duty is to  

enforce the laws made by the Parliament and administer the  

country through various statutory bodies like CVC which is  

empowered to perform the function of vigilance administration.  

Thus, we are concerned with the institution and its integrity  

including  institutional  competence  and  functioning  and  not  

the desirability of the candidate alone who is going to be the  

Central Vigilance Commissioner, though personal integrity is  

an important quality.  It is the independence and impartiality  

of the institution like CVC which has to be maintained and  

preserved  in  larger  interest  of  the  rule  of  law  [see  Vineet  

Narain  (supra)].   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

40

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.   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 3rd September, 2010 of HPC is entirely  

premised  on  the  blanket  clearance  given  by  CVC  on  6th  

October,  2008  and  on  the  fact  of  respondent  No.  2  being  

appointed  as  Chief  Secretary  of  Kerala  on  18th September,  

2007; his appointment as Secretary of  Parliamentary Affairs  

and his subsequent appointment as Secretary,  Telecom.  In

41

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 6 of 2003;  

the sanction accorded by the Government of  Kerala  on 30th  

November,  1999  under  Section  197  Cr.P.C.  for  prosecuting  

inter  alia  Shri  P.J.  Thomas  for  having  committed  alleged  

offence under Section 120-B IPC read with Section 13(1)(d) of  

the Prevention of Corruption Act; the judgment of the Supreme  

Court dated 29th March, 2000 in the case of K. Karunakaran  

v. State of Kerala and Another in which this Court observed  

that,  “the  registration  of  the  FIR against  Shri  Karunakaran  

and  others cannot  be  held  to  be  the  result  of  malafides  or  

actuated  by  extraneous  considerations.   The  menace  of  

corruption cannot be permitted to be hidden under the carpet  

of legal technicalities and in such cases probes conducted are  

required  to  be  determined on facts  and in  accordance  with  

law”.   Further, even the judgment of the Kerala High Court in  

Criminal  Revision  Petition  No.  430  of  2001  has  not  been  

considered.  It may be noted that the clearance of CVC dated  

6th October, 2008 was not binding on the HPC.  However, the

42

aforestated judgment of the Supreme Court dated 29th March,  

2000 in the case of K. Karunakaran vs. State of Kerala and  

Another in  Criminal  Appeal  No.  86  of  1998  was  certainly  

binding on the HPC and, in any event, required due weightage  

to be given while making recommendation, particularly when  

the said judgment had emphasized the importance of probity  

in high offices.  This is what we have repeatedly emphasized in  

our  judgment  –  institution  is  more  important  than  

individual(s).   For the above reasons, it is declared that the  

recommendation made by the HPC on 3rd September, 2010 is  

non-est in law.

Is Writ of Quo Warranto invocable  ?   

34. Shri K.K. Venugopal, learned senior counsel appearing  

on behalf of respondent No. 2, submitted that the present case  

is neither a case of infringement of the statutory provisions of  

the 2003 Act nor of the appointment being contrary to any  

procedure or rules.   According to the learned counsel, it is  

well settled that a writ of quo warranto applies in a case when  

a person usurps an office and the allegation is that he has no  

title  to  it  or  a  legal  authority  to  hold  it.   According  to  the

43

learned counsel for a writ of quo warranto to be issued there  

must be a clear infringement of the law.  That, in the instant  

case there has been no infringement of any law in the matter  

of appointment of respondent No. 2.   

35. 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.   

36. One  more  aspect  needs  to  be  mentioned.   In  the  

present petition, as rightly pointed by Shri Prashant Bhushan,  

learned  counsel  appearing  on  behalf  of  the  petitioner,  a  

declaratory relief is also sought besides seeking a writ of quo  

warranto.   

37. At the outset it may be stated that in the main writ

44

petition the petitioner has prayed for  issuance of  any other  

writ,  direction or  order  which this  Court  may deem fit  and  

proper  in  the  facts  and circumstances  of  this  Case.   Thus,  

nothing prevents this Court, if so satisfied, from issuing a writ  

of declaration.  Further, as held hereinabove, recommendation  

of the HPC and, consequently, the appointment of Shri P.J.  

Thomas was in contravention of  the provisions of  the 2003  

Act, hence, we find no merit in the submissions advanced on  

behalf of respondent No. 2 on non-maintainability of the writ  

petition.  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 [see  Ashok Lanka v. Rishi Dixit (2005) 5  

SCC 598].

38. Keeping in mind the above parameters, we may now  

consider some of the judgments on which reliance has been  

placed by the learned counsel for respondent No. 2.

39. In Ashok Kumar Yadav v. State of Haryana [(1985) 4  

SCC 417], the Division Bench of the Punjab and Haryana High

45

Court  had  quashed  and  set  aside  selections  made  by  the  

Haryana  Public  Service  Commission  to  the  Haryana  Civil  

Service and other Allied Services.   

40. In that case some candidates who had obtained very  

high marks at the written examination failed to qualify as they  

had obtained poor marks in the viva voce test.  Consequently,  

they were not selected.  They were aggrieved by the selections  

made by Haryana Public  Service  Commission.   Accordingly,  

Civil Writ Petition 2495 of 1983 was filed in the High Court  

challenging the validity of the selections and seeking a writ for  

quashing  and  setting  aside  the  same.   There  were  several  

grounds on which the validity  of  the selection made by the  

Commission was assailed.  A declaration was also sought that  

they  were  entitled  to  be  selected.   A  collateral  attack  was  

launched.  It was alleged that the Chairperson and members  

of Public Service Commission were not men of high integrity,  

calibre and qualification and they were appointed solely as a  

matter of political patronage and hence the selections made by  

them were invalid.  This ground of challenge was sought to be  

repelled on behalf of the State of Haryana who contended that

46

not only was it not competent to the Court on the existing set  

of pleadings to examine whether the Chairman and members  

of  the  Commission  were  men of  high  integrity,  calibre  and  

qualification but also there was no material at all on the basis  

of  which the  Court  could come to the conclusion that  they  

were men lacking in integrity, calibre or qualification.   

41. The writ petition came to be heard by a Division Bench  

of the High Court of Punjab and Haryana.  The Division Bench  

held that the Chairperson and members of the Commission  

had  been  appointed  purely  on  the  basis  of  political  

considerations and that they did not satisfy the test of high  

integrity, calibre and qualification.  The Division Bench went  

to the length of  alleging corruption against the Chairperson  

and members of the Commission and observed that they were  

not competent to validly wield the golden scale of viva voce test  

for entrance into the public service.  This Court vide para 9  

observed that it was difficult to see how the Division Bench of  

the High Court could have possibly undertaken an inquiry into  

the  question  whether  Chairman  and  members  of  the  

Commission were men of integrity, calibre and qualification;

47

that  such an inquiry  was  totally  irrelevant  inquiry  because  

even  if  they  were  men  lacking  in  integrity,  calibre  and  

qualification, it would not make their appointments invalid so  

long as the constitutional and legal requirement in regard to  

appointment  are  fulfilled.   It  was  held  that  none  of  the  

constitutional provisions, namely, Article 316 and 319 stood  

violated  in  making  appointments  of  the  Chairperson and  

members  of  the  Commission  nor  was  any  legal  provision  

breached.   Therefore,  the  appointments  of  the  Chairperson  

and  members  of  the  Commission  were  made  in  conformity  

with the constitutional and legal requirements, and if that be  

so, it was beyond the jurisdiction of the High Court to hold  

that such appointments were invalid on the ground that the  

Chairman  and  the  members  of  the  Commission  lacked  

integrity,  calibre  and  qualification.   The  Supreme  Court  

observed that  it  passes  their  comprehension as  to  how the  

appointments  of  the  Chairman  and  members  of  the  

Commission  could  be  regarded  as  suffering  from  infirmity  

merely on the ground that in the opinion of the Division Bench  

of the High Court the Chairperson and the members of the

48

Commission  were  not  men  of  integrity  or  calibre.   In  the  

present  case,  as  stated  hereinabove,  there  is  a  breach/  

violation of the proviso to Section 4(1) of the 2003 Act, hence,  

writ was maintainable.   

42. In  R.K. Jain v. Union of India  [(1993) 4 SCC 119]  

Shri  Harish Chandra was a Senior  Vice-President  when the  

question of filling up the vacancy of the President came up for  

consideration.  He was qualified for the post under the Rules.  

No challenge was made on that account.  Under Rule 10(1) the  

Central Government  was conferred the power to appoint one  

of the members to be the President.  The validity of the Rule  

was  not  questioned.   Thus,  the  Central  Government  was  

entitled to appoint Shri Harish Chandra as the President.  It  

was stated that the track record of Shri Harish Chandra was  

poor.  He was hardly fit to hold the post of the President.  It  

was averred that Shri Harish Chandra has been in the past  

proposed for appointment as a Judge of the Delhi High Court.  

His appointment, however, did not materialize due to certain  

adverse reports.  It was held by this Court that judicial review  

is concerned with whether the incumbent possessed requisite

49

qualification for  appointment  and the manner  in  which the  

appointment came to be made or the procedure adopted was  

fair,  just  and  reasonable.   When  a  candidate  was  found  

qualified  and  eligible  and  is  accordingly  appointed  by  the  

executive to hold an office as a Member or Vice President or  

President of a Tribunal, in judicial review the Court cannot sit  

over the choice of the selection.  It is for the executive to select  

the personnel as per law or procedure.  Shri Harish Chandra  

was  the  Senior  Vice  President  at  the  relevant  time.   The  

question of comparative merit which was the key contention of  

the petitioner could not be gone into in a PIL; that the writ  

petition  was  not  a  writ  of  quo  warranto  and  in  the  

circumstances the writ petition came to be dismissed.  It was  

held that even assuming for the sake of arguments that the  

allegations  made  by  the  petitioner  were  factually  accurate,  

still, this Court cannot sit in judgment over the choice of the  

person made by the Central Government for appointment as a  

President of CEGAT so long as the person chosen possesses  

the  prescribed  qualification  and  is  otherwise  eligible  for  

appointment.  It was held that this Court cannot interfere with

50

the appointment of Shri Harish Chandra as the President of  

CEGAT  on  the  ground  that  his  track  record  was  poor  or  

because of adverse reports on which account his appointment  

as a High Court Judge had not materialized.   

43. In  the  case  of  Hari  Bansh  Lal  v.  Sahodar  Prasad  

Mahto   [(2010)  9  SCC 655],  the  appointment  of  Shri  Hari  

Bansh Lal  as  Chairman,  Jharkhand State  Electricity  Board  

stood  challenged  on  the  ground  that  the  board  had  been  

constituted in an arbitrary manner; that Shri Hari Bansh Lal  

was a person of doubtful integrity; that he was appointed as a  

Chairman without following the rules and procedure and in  

the circumstances the appointment stood challenged.  On the  

question of maintainability, the Division Bench of this Court  

held  that  a  writ  of  quo  warranto  lies  only  when  the  

appointment  is  contrary  to  a  statutory  provision.   It  was  

further held 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  

rules/provisions.  It is important to note that this Court went  

into the merits of the case and came to the conclusion that

51

there was no adequate material to doubt the integrity of Shri  

Hari  Bansh  Lal  who  was  appointed  as  the  Chairperson  of  

Jharkhand  State  Electricity  Board.   This  Court  further  

observed  that  in  the  writ  petition  there  was  no  averment  

saying  that  the  appointment  was  contrary  to  statutory  

provisions.   

44. 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’s case (supra) 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

52

Members  of  Haryana  Public  Service  Commission  was  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.   

45. Even in R.K. Jain’s case (supra), this Court observed  

vide para 73 that judicial review is concerned with whether the  

incumbent possessed qualifications for the appointment and  

the manner in which the appointment came to be made or  

whether procedure adopted was fair, just and reasonable.  We  

reiterate that 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.  We do not  

wish to multiply the authorities on this point.

Appointment  of  Central  Vigilance  Commissioner  at  the

53

President’s discretion

46. On behalf of respondent No. 2 it was submitted that  

though under Section 4(1) of the 2003 Act, the appointment of  

Central Vigilance Commissioner is made on the basis of the  

recommendation of a High Powered Committee, the President  

of India is not to act on the advice of the Council of Ministers  

as  is  provided  in  Article  74  of  the  Constitution.   In  this  

connection, it was submitted that the exercise of powers by  

the President in appointing respondent No. 2 has not been put  

in issue in the PIL, nor is there any pleading in regard to the  

exercise of powers by the President and in the circumstances  

it is not open to the petitioner to urge that the appointment is  

invalid.   

47. Shri  G.E.  Vahanvati,  learned  Attorney  General  

appearing on behalf of Union of India, however, submitted that  

the  proposal  sent  after  obtaining  and  accepting  the  

recommendations  of  the  High  Powered  Committee  under  

Section 4(1) was binding on the President.  Learned counsel  

submitted  that  under  Article  74  of  the  Constitution  the

54

President acts in exercise of her function on the aid and advice  

of  the  Council  of  Ministers  headed  by  the  Prime  Minister  

which advice is binding on the President subject to the proviso  

to Article 74.  According to the learned counsel Article 77 of  

the Constitution inter alia provides for conduct of Government  

Business.  Under Article 77(3), the President makes rules for  

transaction  of  Government  Business  and  for  allocation  of  

business  among  the  Ministers.   On  facts,  learned  Attorney  

General  submitted  that  under  Government  of  India  

(Transaction of Business) Rules, 1961 the Prime Minister had  

taken a decision on 3rd September, 2010 to propose the name  

of  respondent  No.  2  for  appointment  as  Central  Vigilance  

Commissioner after the recommendation of the High Powered  

Committee.  It was accordingly submitted on behalf of Union  

of India that this advice of the Prime Minister under Article  

77(3), read with Article 74 of the Constitution is binding on the  

President.   That,  although the recommendation of  the  High  

Powered Committee under Section 4(1) of the 2003 Act may  

not be binding on the President proprio vigore, however, if such  

recommendation  has  been  accepted  by  the  Prime  Minister,

55

who is the concerned authority under Article 77(3), and if such  

recommendation  is  then  forwarded  to  the  President  under  

Article 74, then the President is bound to act in accordance  

with the advice tendered.  That, the intention behind Article  

77(3) is that it is physically impossible that every decision is  

taken by the Council of Ministers.  The Constitution does not  

use  the  term  “Cabinet”.    Rules  have  been  framed  for  

convenient  transaction  and  allocation  of  such  business.  

Under the Rules of Business, the concerned authority is the  

Prime Minister.  The advice tendered to the President by the  

Prime  Minister  regarding  the  appointment  of  the  Central  

Vigilance  Commissioner  would  be  thus  binding  on  the  

President.   Lastly,  it  was  submitted  that  unless  the  

Constitution expressly permits the exercise of discretion by the  

President, every decision of the President has to be on the aid  

and advice of Council of Ministers.

48. Shri Venugopal, learned counsel appearing on behalf  

of respondent No. 2 submitted that though the President has  

an area of discretion in regard to exercise of certain powers  

under  the  Constitution the  Constitution is  silent  about  the

56

exercise of powers by the President/Governor where a Statute  

confers  such  powers.   In  this  connection  learned  counsel  

placed reliance on the judgment of this Court in Bhuri Nath v.  

State  of  J  &  K [(1997)  2  SCC  745].   In  that  case,  the  

appellants-Baridars challenged the constitutionality of Jammu  

and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 which  

was enacted to provide for better management, administration  

and  governance  of  Shri  Mata  Vaishno  Devi  Shrine  and  its  

endowments including the land and buildings attached to the  

Shrine.   By  operation  of  that  Act  the  administration,  

management  and  governance  of  the  Shrine  and  its  Funds  

stood vested in the Board.  Consequently, all rights of Baridars  

stood extinguished from the date of the commencement of the  

Act  by  operation  of  Section  19(1)  of  the  Act.   One  of  the  

questions which came up for consideration in that case was  

that when the Governor discharges the functions under the  

Act, is it with the aid and advice of the Council of Ministers or  

whether he discharges those functions in his official capacity  

as the Governor.   This question arose because by an order  

dated 16th January, 1995, this Court had directed the Board to

57

frame a scheme for rehabilitation of persons engaged in the  

performance of Pooja at Shri Mata Vaishno Devi Shrine.  When  

that  matter  came up for  hearing  on 20th March,  1995,  the  

Baridars stated that they did not want rehabilitation.  Instead,  

they preferred to receive compensation to be determined under  

Section 20 of the impugned Act 1988.  This Court noticed that  

in  the  absence  of  guidelines  for  determination  of  the  

compensation by the Tribunal to be appointed under Section  

20 it was not possible to award compensation to the Baridars.  

Consequently,  the Supreme Court  ordered that the issue of  

compensation  be  left  to  the  Governor  to  make  appropriate  

guidelines to determine the compensation.  Pursuant thereto,  

guidelines were framed by the Governor which were published  

in the State Gazette and placed on record on 8th May, 1995.  It  

is  in  this  context  that  the  question  arose  that  when  the  

legislature entrusted the powers under the Act to the Governor  

whether the Governor discharges the functions under the Act  

with the aid and advice of the Council of Ministers or whether  

he acts in his official capacity as a Governor under the Act.  

After  examining  the  Scheme  of  the  1988  Act  the  Division

58

Bench  of  this  Court  held  that  the  legislature  of  Jammu &  

Kashmir,  while  making  the  Act  was  aware  that  similar  

provisions in the Endowments Act,  1966 gives power of the  

State Government to dissolve the Board of Trustees of Tirupati  

Devasthanams and the Board of Trustees of other institutions.  

Thus,  it  is  clear  that  the  legislature  entrusted  the  powers  

under  the  Act  to  the  Governor  in  his  official  capacity.   On  

examination  of  the  1988  Act  this  Court  found  that  the  

Governor is to preside over the meetings of the Board and in  

his absence his nominee, a qualified Hindu, shall preside over  

the functions.  That, under the 1988 Act no distinction was  

made between the Governor and the Executive Government.  

That, under the scheme of the 1988 Act there was nothing to  

indicate that the power was given to the Council of Ministers  

and the Governor was to act on its advice as executive head of  

the State.  It is in these circumstances that this Court held  

that while discharging the functions under the 1988 Act the  

Governor acts in his official capacity.  In the same judgment  

this Court has also referred to the judgment of the Full Bench  

of  the  Punjab and Haryana High Court  in  Hardwari  Lal  v.

59

G.D. Tapase [AIR 1982 P&H 439] in which a similar question  

arose  as  to  whether  the  Governor  in  his  capacity  as  the  

Chancellor of Maharshi Dayanand University acts under the  

1975 Act in his official capacity as Chancellor or with the aid  

and advice of the Council of Ministers.  The Full Bench of the  

High Court, after elaborate consideration of the provisions of  

the  Act,  observed  that  under  the  Maharshi  Dayanand  

University Act 1975, the State Government would not interfere  

in  the  affairs  of  the  University.   Under  that  Act,  the  State  

Government  is  an Authority  different  and distinct  from the  

authority  of  the  Chancellor.   Under  that  Act  the  State  

Government was not authorized to advise the Chancellor to act  

in a particular manner.  Under that Act the University was a  

statutory  body,  autonomous  in  character  and  it  had  been  

given  powers  exercisable  by  the  Chancellor  in  his  absolute  

discretion.  In the circumstances, under the scheme of that  

Act  it  was  held  that  while  discharging  the  functions  as  a  

Chancellor, the Governor does everything in his discretion as a  

Chancellor and he does not act on the aid and advice of his  

Council of Ministers.  This judgment has no application to the

60

scheme of the 2003 Act.  As stated hereinabove, the CVC is  

constituted under Section 3(1) of the 2003 Act.  The Central  

Vigilance Commissioner is appointed under Section 4(1) of the  

2003 Act by the President by warrant under her hand and seal  

after obtaining the recommendation of a Committee consisting  

of  the  Prime  Minister  as  the  Chairperson  and  two  other  

Members.   As  submitted  by  the  learned  Attorney  General  

although  under  the  2003  Act  the  Central  Vigilance  

Commissioner  is  appointed  after  obtaining  the  

recommendation  of  the  High  Powered  Committee,  such  

recommendation has got to be accepted by the Prime Minister,  

who is the concerned authority under Article 77(3), and if such  

recommendation is forwarded to the President under Article  

74, 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.   It  may be noted that the  

above submissions of the Attorney General find support even

61

in the judgment of the Division Bench of this Court in Bhuri  

Nath’s case (supra) which in turn has placed reliance on the  

judgment of this Court in Samsher Singh v. State of Punjab  

[(1974) 2 SCC 831] in which a Bench of 7 Judges of this Court  

held  that  under  the  Cabinet  system  of  Government,  as  

embodied in our Constitution, the Governor is the formal Head  

of  the  State.   He  exercises  all  his  powers  and  functions  

conferred on him by or under the Constitution with the aid  

and advice of his Council of Ministers.  That, the real executive  

power is vested in the Council of Ministers of the Cabinet.  The  

same view is reiterated in R.K. Jain’s  case (supra).  However,  

in  Bhuri  Nath’s case  (supra)  it  has  been clarified  that  the  

Governor being the constitutional head of the State, unless he  

is required to perform the function under the Constitution in  

his  individual  discretion,  the  performance  of  the  executive  

power, which is coextensive with the legislative power, is with  

the aid and advice of the Council of Ministers headed by the  

Chief Minister.  Thus, we conclude that the judgment in Bhuri  

Nath’s case has no application as the scheme of the Jammu  

and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 as well

62

as the scheme of Maharshi  Dayanand University Act, 1975 as  

well  as the scheme of the various Endowment Acts is quite  

different from the scheme of the 2003 Act. Hence, there is no  

merit in the contention advanced on behalf of respondent No.  

2  that  in  the  matter  of  appointment  of  Central  Vigilance  

Commissioner  under  Section  4(1)  of  the  2003  Act  the  

President is not to act on the advice of the Council of Ministers  

as is provided in Article 74 of the Constitution.   

Unanimity or consensus under Section 4(2)  of  the 2003  Act

49. One  of  the  arguments  advanced  on  behalf  of  the  

petitioner before us was that the recommendation of the High  

Powered Committee under the proviso to Section 4(1) has to be  

unanimous.  It was submitted that CVC was set up under the  

Resolution dated 11th February, 1964.  Under that Resolution  

the appointment of Central Vigilance Commissioner was to be  

initiated by the Cabinet Secretary and approved by the Prime  

Minister.   However,  the  provision made in  Section 4 of  the  

2003 Act was with a purpose, namely, to introduce an element  

of  bipartisanship  and  political  neutrality  in  the  process  of

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appointment of the head of the CVC.  The provision made in  

Section 4 for including the Leader of Opposition in the High  

Powered  Committee  made  a  significant  change  from  the  

procedure obtaining before the enactment of the said Act.   It  

was further submitted that if unanimity is ruled out then the  

very  purpose  of  inducting  the  Leader  of  Opposition  in  the  

process  of  selection  will  stand  defeated  because  if  the  

recommendation of  the Committee  were to be arrived at  by  

majority  it  would  always  exclude  the  Leader  of  Opposition  

since the Prime Minister and the Home Minister will always be  

ad idem.  It was submitted that one must give a purposive  

interpretation to the scheme of the Act.  It was submitted that  

under Section 9 it has been inter alia stated that all business  

of  the  Commission  shall,  as  far  as  possible,  be  transacted  

unanimously.  It was submitted that since in Vineet Narain’s  

case  (supra)  this  Court  had  observed  that  CVC  would  be  

selected by a three member Committee, including the Leader  

of  the  Opposition  it  was  patently  obvious  that  the  said  

Committee would decide by unanimity or consensus.  That, it  

was  no  where  stated  that  the  Committee  would  decide  by

64

majority.

50. We find no merit in these submissions.  To accept the  

contentions advanced on behalf of the petitioners 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.  Under the proviso to Section  

4(1)  Parliament  has  put  its  faith  in  the  High  Powered  

Committee consisting of the Prime Minister, the minister for  

Home Affairs and the Leader of the Opposition in the House of  

the People.  It is presumed that such High Powered Committee  

entrusted with wide discretion to make a choice will exercise  

its powers in accordance with the 2003 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 High Powered Committee  

will act in a bipartisan manner and shall perform its statutory  

duties keeping in view the larger national interest.  Each of the  

Members  is  presumed  by  the  legislature  to  act  in  public  

interest.  On the other hand, if veto power is given to one of

65

the  three  Members,  the  working  of  the  Act  would  become  

unworkable.  One more aspect needs to be mentioned.  Under  

Section 4(2) of the 2003 Act it has been stipulated that the  

vacancy  in  the  Committee  shall  not  invalidate  the  

appointment. This provision militates against the argument of  

the petitioner that the recommendation under Section 4 has to  

be unanimous.  Before concluding, we would like to quote the  

observations from the judgment in  Grindley and Another v.  

Barker, 1 Bos. & Pul. 229, which reads as under :

“I think it is now pretty well established, that  where a number of persons are entrusted with  the powers not of mere private confidence, but  in some respects of a general nature and all of  them are  regularly  assembled,  the  majority  will  conclude  the  minority,  and  their  act  will be the act of the whole.”

51. The Court, while explaining the raison d’etre behind  

the principle, observed :

“It  is  impossible  that  bodies  of  men  should  always  be  brought  to  think  alike.   There  is  often a degree of coercion, and the majority is  governed  by  the  minority,  and  vice  versa,  according to the strength of opinions, tempers,  prejudices, and even interests.  We shall  not  therefore think ourselves bound in this case by

66

the rule which holds in that.   I  lay no great  stress on the clause of the act which appoints  a majority to act in certain cases, because that  appears  to  have  been  done  for  particular  reasons  which  do  not  apply  to  the  ultimate  trial:  it  relates  only  to  the  assembling  the  searchers; now there is no doubt that all the  six  triers  must  assemble;  and  the  only  question, what they must do when assembled?  We  have  no  light  to  direct  us  in  this  part,  except  the  argument  from the  nature  of  the  subject.  The leather being subject to seizure  in every stage of the manufacture, the tribunal  ought  to  be  composed  of  persons  skilful  in  every  branch  of  the  manufacture.   And  I  cannot say there is no weight in the argument,  drawn  from  the  necessity  of  persons  concurring  in  the  judgments,  who  are  possessed of different branches of knowledge,  but standing alone it is not so conclusive as to  oblige  us  to  break  through the general  rule;  besides,  it  is  very  much  obviated  by  this  consideration when all have assembled and  communicated to each other the necessary  information,  it  is  fitter  that  the  majority  should  decide  than  that  all  should  be  pressed to a concurrence.  If this be so, then  the  reasons  drawn  from  the  act  and  which  have been supposed to demand, that the whole  body should unite  in the  judgment,  have no  sufficient avail,  and consequently the general  rule  of  law  will  take  place;  viz.  that  the  judgment  of  four  out  of  six  being  the  whole  body  to  which  the  authority  is  delegated  regularly  assemble  and  acting,    is  the    judgment of the all.”

52. Similarly, we would like to quote Halsbury’s Laws of

67

England  (4th Ed.  Re-issue),  on this  aspect,  which states  as  

under:

“Where  a  power  of  a  public  nature  is  committed to several persons, in the absence  of  statutory  provision  or  implication  to  the  contrary  the  act  of  the  majority  is  binding  upon the minority.”

53. In  the  circumstances,  we  find  no  merit  in  the  

submission made on behalf of the petitioner on this point that  

the  recommendation/decision  dated  3rd September,  2010  

stood vitiated on the ground that it was not unanimous.

Guidelines/Directions of this Court

54. The  2003  Act  came  into  force  on  and  from  11th  

September, 2003.  In the present case we find non-compliance  

of some of the provisions of the 2003 Act.  Under Section 3(3),  

the  Central  Vigilance  Commissioner  and  the  Vigilance  

Commissioners are to be appointed from amongst persons –

(a) who have been or who are in All-India Service or in  

any civil service of the Union or in a civil post under  

the  Union  having  requisite  knowledge  and

68

experience as indicated in Section 3(3)(a); or  

(b) who  have  held  office  or  are  holding  office  in  a  

corporation established by or under any Central Act  

or a Central Government company and persons who  

have experience in finance including insurance and  

banking, law, vigilance and investigations.

55. No reason has been given as to why in the present  

case the zone of consideration stood restricted only to the civil  

service.  We therefore direct that :

(i) In  our  judgment  we  have  held  that  there  is  no  

prescription  of  unanimity  or  consensus  under  Section  

4(2) of the 2003 Act.  However, the question still remains  

as  to  what  should  be  done  in  cases  of  difference  of  

opinion  amongst  the  Members  of  the  High  Powered  

Committee.  As in the present case, if one Member of the  

Committee dissents that Member should give reasons for  

the dissent and if the majority disagrees with the dissent,

69

the majority shall give reasons for overruling the dissent.  

This will bring about fairness-in-action.  Since we have  

held  that  legality  of  the  choice  or  selection  is  open to  

judicial  review  we  are  of  the  view  that  if  the  above  

methodology  is  followed  transparency  would  emerge  

which would also maintain the integrity of the decision-

making process.

(ii) In future the zone of consideration should be in terms of  

Section 3(3) of the 2003 Act.  It shall not be restricted to  

civil servants.

(iii) All the civil servants and other persons empanelled shall  

be  outstanding civil  servants  or  persons of  impeccable  

integrity.

(iv) 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.

70

(v) The empanelment shall be carried out by a person not  

below the rank of Secretary to the Government of India in  

the concerned Ministry.

(vi) 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  or  material  should  be  withheld  from  the  

Selection Committee.  It will 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.

(vii) The  Selection  Committee  may  adopt  a  fair  and  

transparent process of  consideration of  the empanelled  

officers.

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Conclusion

56. For  the  above  reasons,  it  is  declared  that  the  

recommendation  dated  3rd September,  2010  of  the  High  

Powered  Committee  recommending  the  name  of  Shri  P.J.  

Thomas as Central Vigilance Commissioner under the proviso  

to  Section  4(1)  of  the  2003  Act  is  non-est  in  law  and,  

consequently, the impugned appointment of Shri P.J. Thomas  

as Central Vigilance Commissioner is quashed.

57. The  writ  petitions  are  accordingly  allowed  with  no  

order as to costs.

………..……………………….CJI             (S. H. Kapadia)

……..……………………………..J.             (K.S. Panicker Radhakrishnan)

……..……………………………..J.             (Swatanter Kumar)

New Delhi;  March 3, 2011  

72

73

ITEM NO.1A            COURT NO.1             SECTION PIL

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

              WRIT PETITION (CIVIL) NO.348 OF 2010

CENTRE FOR PIL & ANR.                       Petitioner(s)

                VERSUS

UNION OF INDIA & ANR.                       Respondent(s)

With Writ Petition (C) No.355 of 2010

Date: 03/03/2011  These Matters were called on for             judgement today.

For Petitioner(s) Mr. Prashant Bhushan,Adv. In WP 348/2010: Mr. Pranav Sachdeva,Adv.

In WP 355/2010: Mr. Siddharth Bhatnagar,Adv. Mr. Prashant Kumar,Adv. Mr. B.S. Iyenger,Adv.

                    for M/s. AP & J Chambers,Advs.

For Respondent(s) Ms. Indira Jaising,ASG Mr. Devadatt Kamat,Adv. Mr. T.A. Khan,Adv. Mr. Anoopam N. Prasad,Adv. Mr. Nishanth Patil,Adv. Mr. Rohit Sharma,Adv. Ms. Naila Jung,Adv. Ms. Anil Katiyar,Adv. Mr. S.N. Terdal,Adv.

In WP 348/2010: Mr. K.K. Venugopal,Sr.Adv. Mr. Gopal Sankaranarayanan,Adv. Mr. Wills Mathews,Adv. Mr. D.K. Tiwari,Adv. Mr. Rajdipa Behura,Adv. Mr. Shyam Mohan,Adv. Mr. A. Venayagam Balan,Adv.

In WP 355/2010: Mr. K.K. Venugopal,Sr.Adv. Mr. Wills Mathews,Adv.

....2/-

74

- 2 -

For Intervenor: Mr. Braj Kishore Mishra,Adv. Ms. Aparna Jha,Adv. Mr. Vikas Malhotra,Adv. Mr. M.P. Sahay,Adv. Mr. Abhishek Yadav,Adv. Mr. Vikram,Adv.

Hon'ble the Chief Justice pronounced the  judgement of the Bench comprising His Lordship,  Hon'ble  Mr.  Justice  K.S.  Panicker  Radhakrishnan  and Hon'ble Mr. Justice Swatanter Kumar.

The  writ  petitions  are  allowed  with  no  order as to costs.

Application for intervention is dismissed.

 [ T.I. Rajput ]               [ Madhu Saxena ]    A.R.-cum-P.S.          Assistant Registrar  

[Signed reportable judgment is placed on the file.]