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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [C] NO.54 OF 2019

COMMON CAUSE & ANR. … PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. … RESPONDENTS

J U D G M E N T

ARUN MISHRA, J.

1. The writ petition has been filed under Article 32 of the Constitution

of India seeking issuance of a writ of mandamus to direct Union of India

to appoint a regular Director of CBI forthwith by following the procedure

laid down in section 4A of the Delhi Special Police Establishment Act,

1946. Prayer has also been made to quash the order dated 10.1.2019

issued by Union of India appointing Mr. Nageshwar Rao as the interim

Director of CBI. A further prayer has been made to issue appropriate

writ  or  direction  to the Union of India  to  ensure  that  all records of

deliberations and rational  criteria of  shortlisting and selection of  the

Director,  CBI be properly recorded and made available  to citizens  in

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consonance with the provisions of the RTI Act.  A further prayer has

been made to direct Union of India to ensure transparency in

shortlisting, selection and appointment process of Director, CBI.

2. It is averred in the petition that the Government of India has failed

to appoint Director of CBI as per section 4A of the Delhi Special Police

Establishment Act,  1946,  and has  instead appointed Mr.  Nageshwar

Rao as the interim Director of CBI in an arbitrary and illegal manner.  

3. It is further averred that petitioner no.1, Common Cause is a

registered society and petition has been filed in bona fide public

interest. However, the average annual income of the society in the last 3

financial years is approximately Rs.1.17 crores. Petitioner No.2 is an

RTI activist and had filed applications under the Right to Information

Act, 2005 seeking information about the process of appointment of the

new Director of  CBI  in terms of  the process adopted  for shortlisting

candidates, if any,  minutes  of  meetings  of the  search  and  selection

committee, none of which were provided to her in violation of the RTI

Act.  The average annual income of petitioner No.2  for  the  last  three

financial years is about Rs.5 lakhs. The petitioners have no

private/oblique motive. Petitioners have not made any representation to

the respondent in this regard because of extreme urgency of the matter

in issue except for the letter written by Common Cause on 9.1.2019 for

initiating the process of appointment of regular Director, CBI.

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4. It is also averred that CBI is the premier investigation agency in the

country. It investigates corruption­related offenses connected with the

Central Government and also cases connected with State Government

entities. This Court has entrusted important cases of corruption and

violation of human rights to CBI for investigation. The Director of CBI is

the head of the organisation. He supervises all the work and is

responsible for the constitution of investigating teams for probing cases.

This Court and the Parliament have made determined efforts to

enhance the functional autonomy of CBI Director and limit the extent of

executive discretion in the matter of appointment of this key

functionary.

5. In the case of Vineet Narain & Ors. v. Union of India & Anr. (1998) 1

SCC 226, this Court issued directions to insulate the CBI from

extraneous influence. This Court directed that there should be a

selection committee to identify  a  panel  of  names  for  appointment of

Director, CBI and thereafter the final selection is to be made by the

Appointments Committee of Cabinet (ACC). CBI Director would have a

fixed tenure  of  2  years.  Said  direction  was issued  by this  Court to

ensure that ad­hocism in the appointment and functioning of CBI

Director is eliminated and independence is maintained.

6. Accordingly, in 2003 amendments  were  made to the  DSEP Act

following  Vineet Narain’s case (supra). The provisions were further

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amended in 2013 to the DSPE Act through the Lokpal and Lokayuktas

Act to further insulate the selection committee from government

influence. The CBI Director is to be appointed by the Central

Government on the recommendations of a committee comprising (a) the

Prime Minister­Chairperson, (b) the Leader of Opposition (Member) and

(c) the Chief Justice of India or any Judge of Supreme Court nominated

by him. The Act was further amended in November 2014 to provide for

the Leader of the single largest Opposition Party in Lok Sabha to be a

member of the selection committee in case no Leader of Opposition is

recognised.

7. Section 4A of the Act  provides  for  constitution of the committee.

Same is extracted hereunder:  

“4A. Committee for appointment of Director –  

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

(a) the Prime Minister – Chairperson. (b) the Leader of Opposition 12 recognised as such in the House of

the  People  or  where there is  no  such Leader  of  Opposition, then, the Leader of the single largest Opposition Party in that House – Member  

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

(2) No appointment of a Director shall be invalid merely by reason of any vacancy or absence of a Member in the Committee.

(3) The Committee shall recommend a panel of officers –  (a) on the basis of seniority, integrity, and experience in the

investigation of anti­corruption cases; and (b) chosen  from amongst  officers  belonging to the Indian Police

Service constituted under the All­India Services Act, 1951 (61 of 1951)

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for being considered for appointment as the Director.”  

8. This Court in C.A. No.4303/2002 has clarified that as regards

seniority mentioned in section 4A of the Delhi Special Police

Establishment Act, 1946, ordinarily all the IPS officers of the

seniormost four batches in the service on the date of retirement of CBI

Director, irrespective of their empanelment, shall be eligible for

consideration for appointment to the post of Director, CBI.

9. Challenge has been made to the appointment of Mr. Nageshwar Rao

as interim Director of CBI on the ground that on 23.10.2018, 2 separate

orders were issued by the Central Vigilance Commission and the Govt.

of India. The then Director of CBI Mr. Alok Verma was divested of his

powers and vide another order issued by the Government of India  Mr.

Nageshwar Rao was made Director, CBI as an interim measure. The

appointment of Mr. Nageshwar Rao as interim Director was not

recommended by the selection committee.  The Government bypassed

the High Powered Selection Committee and in complete contravention of

the established procedure unilaterally made the interim appointment.

The order dated 23.10.2018 regarding the appointment of Mr.

Nageshwar Rao was challenged in this Court in W.P. [C] No.1315/2018.

Vide judgment dated 8.1.2019 this Court quashed the order regarding

the appointment of Mr. Nageshwar Rao and relating to Mr. Alok Verma

this Court observed :  

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“37. There is yet another issue of significance that arises from the  weighty arguments advances in the course of the long debate that has taken place.   This is with regard to the application of Section 14, 15 and 16 of the General Clauses Act, 1897 so as to confer power in the Central Government to pass the impugned orders including the order of appointment of an acting Director of  the CBI.   The preceding discussions and our views on the true and correct meaning of the provisions contained in  Sections  4A  & 4B of the  DSPE Act leaves us convinced that the aforesaid provisions of the General Clauses Act will have no application to the present case in view of the clear and apparent intention to the contrary that unequivocally flows from the aforesaid provisions of the DSPE Act.

10.   In  Writ Petition (C) No.1315 of 2018, this Court granted the

following reliefs:

“39. Consequently, in the light of our views as expressed above we set aside the following orders dated 23rd October 2018.  

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

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

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

  It is averred in the petition that the appointment of Mr.Nageshwar

Rao as interim CBI Director was not made on the recommendations of

the High Powered Selection Committee. The committee was completely

bypassed and had no role in the appointment of Mr. Nageshwar Rao

thereby rendering the appointment as illegal as it is in violation of the

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procedure for appointment of Director, CBI. The order dated 10.1.2019

states that the appointments committee of the Cabinet has approved

the appointment of Mr. Nageshwar Rao "as per the earlier

arrangement". As the said arrangement had been quashed by this Court

as it was made in violation of procedure for CBI Director as defined in

the DSPE Act, Government still  invoked its earlier order which stood

quashed to once again make appointment of CBI Director, even though

it is not the competent authority and does not have any authority to

make appointment, without following the due procedure laid down in

the DSPE Act. The recommendation of High Powered Selection

Committee was necessary, thus, the Government has acted completely

in an arbitrary manner and in contravention of DSPE Act to appoint Mr.

Nageshwar Rao.  

11.   It is further submitted that there is a lack of transparency in the

appointment of CBI Director. This Court has given various directions to

ensure transparency in the process of shortlisting, selection and

appointment of functionaries  of various independent  bodies like the

Central Vigilance Commission and Information Commissions to prevent

the appointment process being undermined behind a cloak of secrecy.

12.   It is further averred that this Court in  Anjali Bhardwaj & Ors. v.

Union of India  vide its  order  dated  13.12.2018  directed the  Central

Government to proactively disclose the details of shortlisted candidates

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and the criteria followed. Transparency has to be maintained as

observed in Union of India v. Namit Sharma (2013) 10 SCC 359. Reliance

has also been placed on Centre for PIL & Anr. v. Union of India & Anr. ­­

W.P. [C] Nos.348 & 355/2010. So far as the appointment of Director

CBI is concerned, the Government of India has failed to follow proper

procedure for selection and appointment. In December 2018 as reported

by the media the Government initiated the process of appointment of

Director,  CBI as  the tenure of  Mr.  Alok Verma was set  to finish on

31.1.2019. Petitioner No.2 filed applications under the RTI Act seeking

information about meetings of the Selection Committee, including the

date of the meetings, copy of the agenda of meetings, copy of Minutes of

meetings, details of the persons who attended each meeting, details of

the procedure adopted by the Government to shortlist candidates for

consideration by the Selection Committee etc. but no such information

had been disclosed. No such copy of shortlisted candidate was provided.

Government has responded summarising the directions of this Court in

C.A. No.4303/2002 regarding clarification of seniority amongst all the

IPS officers of senior­most 4 batches in service on the date of retirement

of the Director, CBI which were needed to be considered for filling up

the post and giving information about the composition of the Selection

Committee  under the DSPE Act.  Request  dated 19.12.2018  (P5)  has

been placed on  record.  On 9.1.2019 prayer  was  made  to the  Prime

Minister and the Leader of the largest party in Opposition to initiate the

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process for appointment of regular CBI Director hence the petition has

been filed.

13.   After several  recusals by different Benches, ultimately,  the case

was taken up on 1.2.2019 by this Court on which date the arguments

were heard at some length. It was pointed out by Mr. K.K. Venugopal,

learned Attorney General for India that High Powered Committee was

scheduled to meet on the same day in connection with the appointment

of  Director of CBI. The case  was adjourned to 6.2.2019.  However,

during hearing on 1.2.2019, the Minutes of the High Powered Selection

Committee were placed before the court and it was made clear by the

Attorney General for India that the said  Committee  by majority  has

decided to authorise Government of India to appoint an interim Director

while passing a resolution and the counsel for the petitioner was told by

the Court of such resolution having been passed by the Committee.  On

that, he had conceded that the ground that Committee under Section

4A has not authorised appointment does not survive. Following is the

operative part of the resolution dated 9th /10th January, 2019:

“(i) Shri Alok Kumar Verma be transferred from the post of Director, CBI and given a suitable assignment for the residual period of his present term ending on 31.01.2019.

(ii) the Central Government may post a suitable officer to look after the duties of the Director, CBI till the appointment of a new Director, CBI.”

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14.  It is apparent from the decision of the committee under Section 4A

that the Government was authorised to post a suitable officer as interim

Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus,

the submission raised in the petition on behalf of the petitioners that

the HPSC has not authorised the appointment of interim Director  is

totally misconceived and petitioners have failed to verify the aforesaid

facts and the petition has been filed in undue haste without verifying

the fact whether the appointment has been authorised by the

Committee for appointment of Director constituted under section 4A of

the DSPE Act.

15.   Unfortunately after  what transpired in the court on 1.2.2019

certain tweets were made by  learned counsel  appearing on behalf  of

Common Cause and another with respect to which the Attorney General

has filed contempt petition as well as the Union of India.  It was tweeted

that the Minutes of the said meeting had been forged, the Court was

misled and there had been no authorisation by the Committee

constituted under section 4A about appointment of interim Director. As

to the tweets made, the contempt petitions have been filed  in which

notice has been issued.  Effect of the tweets during the pendency of the

writ petition is the subject matter of the contempt petition and the same

is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as

such we refrain to comment in the petition on the submission as to

tweets.

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 16.  It is clear from the resolution passed by the Committee on 9/10 th

January, 2019 that the appointment of interim  Director had been

authorised by the Committee under section 4A. Thus, it cannot be said

to be unauthorised and illegal in any manner whatsoever. The

submission raised that the Selection Committee had not authorised the

appointment of interim Director is fallacious on the face of the record

and is misconceived in view of the said resolution. We need not go into

the larger question whether in such exigency it was necessary to have

such a resolution for the appointment of Interim Director by Selection

Committee as that does not arise for decision in this case as Committee

has passed the aforesaid resolution.

17.  With respect to RTI application that was filed by petitioner No.2, it

had been replied on 19.12.2018 as follows :

“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56336 dated 5.12.2018 information under RTI Act, 2005.

2. It is informed that as per this Department’s Executive Order No.230/14/99­DSPE dated 8.7.2004  issued  in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) Director, CBI are needed to be considered for selection to the post of Director, CBI. It is further informed that as per Section 4(A)(1) of the DSPE Act, 1946, as amended by the Lokpal and Lokayuktas Act, 2013 (No.1 of 2014) (copy enclosed), the Central Government appoints the Director, CBI on the recommendation of the Committee consisting of members as prescribed for the purpose under the ibid section.

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3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD­II), North Block, New Delhi within 30 days of receipt of this letter.”

  18.  Petitioner had filed yet another application on 25.12.2018 in which

it was prayed that what was the process being adopted by the

Government to shortlist of the candidates, a copy of shortlisting

prepared be disclosed, following reply was sent on 2.1.2019 :

“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56394 & DOP&T/R/2018/56397  dated  25.12.2018  information  under RTI Act, 2005. 2. It is informed that as per this Department’s Executive Order No.230/14/99­DSPE dated 8.7.2004  issued  in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, amongst all the IPS officers of the senior most  4  batches in service  on the  date  of retirement  of the (incumbent) Director, CBI are needed to be considered for filling up the post of new Director, CBI. The process of selection of new Director in CBI has not attained finality.

3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD­II), North Block, New Delhi within 30 days of receipt of this letter.”

19.  Petitioner No.2 was advised by  the aforesaid communication  in

case she was aggrieved, to take recourse to appeal before the appellate

authority under the RTI Act. It appears that the petitioner has not filed

any appeal/s. In view of letters, we find no ground to interfere in the

matter on the said ground too.

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20.   On the one hand the petitioner asked on 10.1.2019 for an

appointment of regular Director and that meeting be convened at the

earliest to appoint regular  Director.  We find that since the regular

Director has been appointed the main prayer of the petitioner stands

satisfied and there is absolutely no justification to continue with this

writ petition in the aforesaid circumstances. In case the due process

has not  been  followed  in the appointment, it is  always open to  any

incumbent,  if  so advised, to question the appointment in accordance

with law but not in the routine manner and undue haste as shown in

the petition.  

21.   Accordingly, we find no ground to interfere with this writ petition

and the same is hereby dismissed. Parties are left to bear their own

costs as incurred.

…………………….…….J. (Arun Mishra)

New Delhi; ……………………………J. February 19, 2019. (Navin Sinha)