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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7221  OF  2016 (Arising out of SLP (C) No.14406 of 2012)

Educ. Cons. (I) Ltd. SC/ST Empl. Wel. Asso.      …… Appellant

Versus

Union of India & Others …… Respondents

JUDGMENT

Uday Umesh Lalit

1. Leave granted.

2. This  appeal  is  directed against  the judgment  and order  dated 07.12.2011

passed by the High Court of Delhi dismissing Writ Petition (Civil) No.7577

of  2011,   which had  questioned  and sought  quashing  of  orders  granting

extension  of  tenure  to  Respondent  No.4  Ms.  Anju  Banerjee  as

Chairman-cum-Managing Director, Educational Consultants India Limited,

for a period of 5 years i.e., upto 28.11.2015.

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3. Educational  Consultants  India  Limited  (Ed.CIL,  for  short)  was

conceived and incorporated as a Public Sector Enterprise by the Government

of India in 1981 under the Ministry of Education and Culture (reconstituted

as the Ministry of Human Resource Development since then).  The Ed.CIL

offers consultancy and technical services in different areas of Education and

Human Resource  Development  not  only  within  the  Country  but  also  on

global basis.  The Ed.CIL is category ‘C’ Central Public Sector Undertaking.

The procedure with regard to appointments to posts in categories ‘C’ and ‘D’

of Public Sector Enterprises has been prescribed by Office Memorandum

dated  03.04.2001,  whereby  the  Appointments  Committee  of  Cabinet  has

delegated  its  power  in  relation  to  appointments,   to  Administrative

Ministries/Departments  Public  Sector  Undertakings.   According  to  the

procedure  prescribed,  Public  Enterprises  Selection  Board  (hereinafter

referred to as PESB) a high powered body constituted by the Government of

India to advise the Government on appointments to top managerial posts, is

involved in the selection process. The policy of the Government of India is

to appoint outstanding professional Managers to levels 1 and 2 posts and

such other posts as the Government may decide from time to time, through a

fair and objective selection procedure.

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4. Respondent No.4, who was then holding the post of Group General

Manager, HRD,  Indian  Railway Catering  and Tourism Corporation,  New

Delhi  was  appointed  as  Chairman-cum-Managing  Director  (‘CMD’  for

short)   of  Ed.CIL  vide  order  dated  04.10.2005  for  five   years  w.e.f.

30.11.2005 after  following due  procedure.    The  tenure  of  five  years  of

Respondent No.4 as CMD of  Ed.CIL was to expire on 29.11.2010 and the

Ministry of Human Resource and Development (‘HRD’ for short) took up

the  matter  with  PESB  on  the  proposal  of  extension  to  be  granted  to

Respondent No.4.  The proposal  was considered by PESB in its  meeting

held on 26.10.2010 and the recommendations were then forwarded to the

Ministry of HRD vide letter dated 27.10.2010 as under:-

      “PUBLIC ENTERPRISES SELECTION BOARD (Ministry of Personnel Public Grievances & Pensions)

Sub: Extension of tenure or otherwise of Ms. Anju Banerjee, CMD, Educational Consultants India Ltd. beyond 29.11.2010.

1.   The Board considered the proposal  of  the Ministry of  Human Resource Development regarding extension of tenure or otherwise Ms.  Anju  Banerjee,  CMD,  Educational  Consultants  India  Ltd. beyond  29.11.2010  as  contained  in  letter No.F.20-19/2010/TS-VIII(Pt.)  dated  14.9.2010,  24.09.2010  & 20.10.2010.

2.   As per the procedure laid down by the PESB vide their O.M. No. 5/16/96-PESB  dated  21.11.1996,  the  case  of extension/non-extension of  tenure  of  Board level  appointees are required  to  be  considered  by  the  Board  in  the  light  of  his

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performance  as  reflected  in  the  documents  like  the  data  based performance report, the special performance report and the ACRs along with the inputs given by the Secretary of the Administrative Ministry etc.

3.   Against this background, the proposal of the Ministry of Human Resource Development regarding extension of tenure or otherwise of Ms. Anju Banerjee, CMD, Educational Consultants India Ltd. beyond  29.11.2010, was considered by the Board in its meeting held on 6.10.2010 when Secretary, HRD apprised the Board that no ACRs of the officer were available. The Board decided to await for the ACRs before taking a decision. As per the standard practice Ms. Anju Banerjee was also called to meet the Board.

4.   The Board noted that on the recommendation of the PESB and with the approval of the competent authority, Ms. Anju Banerjee was appointed as CMD, Educational Consultants India Ltd. w.e.f. 30.11.2005 and she would complete her five years on 29.11.2010. She will attain the age of superannuation on 31.1.2017, her date of birth being 24.1.1957.

5.   On receipt  of  ACRs the  Board considered the proposal  in  its internal meeting on 26.10.2010. Taking into account the totality of circumstances  including  her  performance  as  reflected  in  the documents forwarded by the Administrative Deptt.  like the data based  performance  report,  the  special  performance  report,  the available ACRs and the inputs given by the Secretary, HRD the Board after consideration recommended extension of tenure of Ms. Anju Banerjee, CMD, Educational Consultants India Ltd. beyond 29.11.2010 to 29.11.2015.

6.   The ACR dossiers of Ms. Anju Banerjee (For the period from 1.4.09 to 31.10.09 and November 2009 to 31.3.2010) are enclosed for  necessary  action.  For  expediting  Vigilance  Clearances  a photo-copy  of  the  pro-forma  filled  in  by  the  candidate  is  also enclosed for necessary action.

7. The  case  may  kindly  be  processed  further  for  obtaining  the approval of the competent authority for extension of tenure of Ms.

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Anju Banerjee, CMD, Educational Consultants India Ltd. beyond 29.11.2010 upto 29.11.2015.

8.   A copy of the order when issued may please be sent to us for information of the Board.

(VEDANTAM GIRI)    DIRECTOR

(Ministry  of  Human  Resource  Development  Ms.  Vibha  Puri Das. Secretary) New Delhi PESB U. O .No. 9/15/2010-PESB dated 27/10/2010”

5. The proforma for  seeking Vigilance  Clearance  was enclosed along

with the aforesaid recommendation and the relevant papers were sent  by

PESB directly to Central Vigilance Commission (‘CVC’ for short).  CVC by

its  letter  dated  01.11.2010  requested  the  Ministry  of  HRD  to  provide

complete  information  in  respect  of  Respondent  No.4  in  the  prescribed

format.  Accordingly, by letter dated 09.11.2010 the Government of India,

Ministry  of  HRD,  Department  of  Higher  Education  forwarded  complete

details of Respondent No.4 to CVC stating inter-alia that Respondent No.4

was clear from Vigilance angle.  It was stated in the letter that the tenure of

Respondent No.4 as CMD, Ed.CIL was due to expire on 29.11.2010 and as

such  Vigilance  Clearance  may  be  communicated  to  the  Ministry  by

26.11.2010.  

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6. This  was  followed  by  letter  dated  23.11.2010  in  which  the

Government of India, Ministry of HRD, Department of Higher Education

requested  CVC to  expedite  the  matter  and forward the  Clearance  before

26.11.2010.  As no communication was received from CVC, the file was

placed before the Competent Authority which took following  decisions:-

“(a) In the event of Vigilance Clearance from CVC not being available by 26.11.2010, the present CMD, Smt.Anju Banerjee may be allowed to continue for a period of three months beyond 29.11.2010 for until further order, whichever is earlier.

(b) If  the  Vigilance  Clearance  from  CVC  is  received, extension for full five years would be issued.”

7. Since no response was received from CVC, the Government of India,

Ministry  of  HRD,  Department  of  Higher  Education  vide  its  order  dated

29.11.2010  granted  extension  of  tenure  to  Respondent  No.4  as

Chairman-cum-Managing Director, Ed.CIL for an initial period of 3 months

beyond 29.11.2010 or until further orders.  On 02.12.2010 CVC wrote to the

Government of India, Ministry of HRD to the following effect:-

“Telegraphic Address ‘SATARKTA’, New Delhi E-Mail Address cewnvigil@nic.in Website www.cvc.nic.in     CENTRAL VIGILANCE COMMISSION EPABX 24651001-07 QSDI/Fax:2461286

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     Satarkta Bhavan G.P.O. Complex        Block A, INA, New Delhi-110023

005-VGC-151 La-/No…………………………..

Fnukad/Dated   2.12.2010 Shri Amit Khare, Jt. Secy & CVO Ministry of HRD, D/o Higher Education New Delhi.

Sub:  Vigilance  Clearance  in  respect  of  Ms.  Anju  Banerjee CMD, Educational Consultants India Ltd.

1. Please  refer  to  your  letter  No.  F.C.  19011/2/2010-Vig.  Dated 9.11.2010 on the above subject.

2. As  the  Ministry  of  HRD  is  aware,  there  have  been  a  series  of complaints against Ms. Banerjee in the recent past including repeated complaints made under Whistleblower’s Act, from a Deputy Manager of  EdCIL  leveling,  inter  alia,  allegations  of  harassment,  of irregularities  in  promotions/appointments  etc.  the  ministry  is  also aware that some of these allegations have been found on investigation, to be prima facie true. Further when the Commission took up the case of  protection  of  the  whistle  blower,  Ms.  Banerjee  not  only  put pressure  on  the  CVO  but  also  got,  eventually  the  CVO’s  post abolished, Attention of the Ministry is also invited, in this connection, to the ex-CVO/EdCIL’S letter dated 05.02.2010, Commission’s letters dated 11.02.2010, 05.04.2010 etc. as well (copies enclosed).

3. The commission has, therefore, advised that the above facts may be placed  before  the  competent  authority  while  it  considers  Ms. Banerjee’s case for extension of tenure.

Yours faithfully

(P.M.Pillai)

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Director Telefax- 24651013

Encl: As above”

8. In  reply,  the  Government  of  India  vide  letter  dated  06.01.2011

clarified  the  issues  raised  in  letter  dated  02.12.2010.   It  stated  that  the

concerned Deputy Manager was charge-sheeted prior to his filing complaints

and that such complaint was not whistleblower’s complaint.  The letter was

as under:-

   “No. F.C. 19011/2/2010-VIG. Government of India Ministry of Human Resource Development Department of Higher Education Vigilance Wing

New Delhi, dated the 6th January, 2011

To, Shri P.M. Pillai Director Central Vigilance Commission Satarkta Bhawan, GPO Complex, Block-A, INA,  New Delhi.

Sub:  Vigilance  Clearance  in  respect  of  Ms.  Anju  Banerjee, CMD, Educational Consultants India Ltd.

Sir,

1. Please refer to your letter No. 005-VGC-151/110692 dated 02.12.2010 on the subject mentioned above. While in pursuance of Commission’s

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advice, we would be placing before the competent authority, the issue raised by the Commission in the subject letter, I am desired to apprise the Commission of the status of these issues.

2. In so far as the complaints made under the Whistleblowers Act by Deputy Manager of Ed.CIL against Ms.Anju Banerjee are concerned, we  had  earlier  vide  our  letter  dated  24.05.2010,  apprised  the Commission  of  the  sequence  of  events  about  the  initiation  of disciplinary proceeding against the said Deputy Manager by Ed.CIL and his  filing  the  PIDPI  complaint  with  the  Commission.   On the aforesaid reference from the Ministry, this issue was examined by the Commission  and  the  Commission  had  intimated  vide  their  letter No.006/EDN/057 (Pt.)/89868 dated 09.06.2010 that  they had noted the position brought out by the Ministry that the said Deputy Manager was charge-sheeted prior to his filing the PIDPI complaint.  In view of this, obviously the complaint was not a whistleblower’s complaint.  

3. As regards the abolition of the CVO’s post by Ed.CIL, the fact is that the post was abolished by the Ed.CIL Board which decision, after due consideration,  was  subsequently  endorsed  by  the  Ministry  and  the position in this regard was also apprised to the Commission and to the Department  of  Personnel  &  Training  vide  letter No.C-34014/1/2008-Vigilance  dated  11th/15th March,  2010  and No.C-34014/1/2008-Vig dated 1st April, 2010 respectively.  

Yours faithfully (AMIT KHARE)

Joint Secretary & CVO”

9. The  record  indicates  that  in  order  to  get  factual  position  in  respect  of

allegations  in  the  complaint   referred  to  in  the   letter  dated  02.12.2010

examined,  the  Education  Secretary,  Department  of  Higher  Education,

Ministry  of  HRD,  Government  of  India  vide  her  Note  dated  02.02.2011

commended that the said matters be jointly examined by two senior most

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officers of the Department. Accordingly all the allegations contained in the

complaint   referred  to  in  letter  dated  02.12.2010  were  looked  into  by  a

Committee  of  two  senior  most  officers  of  the  Department  namely  Shri

Ashok Kumar Thakur and Shri Sunil Kumar on the basis of the concerned

file. The Committee submitted its report in the form of tabulated statement

indicating the allegations, response of Ed. CIL and conclusions reached by

the Committee with respect to those allegations. The Committee found no

merit in any of the allegations and concluded that no case was made out for

denial of re-appointment of Respondent No.4.  The entire matter was then

placed before the Competent Authority who after considering all the issues

approved extension of tenure of Respondent No.4 for a period of five years.

Accordingly  the  Government  of  India,  Ministry  of  HRD,  Department  of

Higher  Education  vide  its  letter  dated  22.02.2011  granted  extension  to

Respondent No.4 for five years.    

10. Thereafter Joint Secretary/CVO of the  Government of India, Ministry

of  HRD,  Department  of  Higher  Education  vide  letter  dated  16.03.2011

forwarded report of the Committee to CVC and informed that the Committee

did not find any merit in the allegations leveled in the complaint referred to

in letter dated 02.12.2010 of CVC. He further stated that he agreed with the

recommendations of the Committee and was of the considered view that the

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matter be closed and suggested that CVC may also consider closure of the

matter.  Said letter dated 16.3.2011 was to the following effect:-

   “No. C-13012/14/2010-Vigilance     Government of India  

Ministry of Human Resource Development          Department of Higher Education

Vigilance Wing       

R.No. 231, C Wing, Shashtri Bhawan, New Delhi, dated 16th March, 2011

Subject:- Complaint against Smt. Anju Banerjee CMD Ed. CIL   Central  Vigilance Commission may kindly refer  to their  OM Nos.010/EDN/065/96501  dated  10.08.2010,  010/EDN/065/ 9741 dated 10.08.2010, 010/EDN/064/96104 dated 29.07.2010, 010/EDN/065/102883  dated  23.09.2010,010/EDN/065/116320 dated  17.01.2011  on  the  above  mentioned  subject.  These complaints  were  referred  to  a  Committee  consisting  of  Shri Ashok  Thakur,  Special  Secretary  and  Shri  Sunil  Kumar, Additional  Secretary in the Ministry. The Committee did not find  any  merit  in  any  of  the  allegations  leveled  in  the complaints.

2. The Report has been accepted by the Central Govt. in the Ministry.

3. I fully agree with the recommendations of the Committee and am  of  the  considered  view  that  this  matter  should  now  be closed. Central Vigilance Commission may, therefore, consider closure of the same.

              (Amit Khare)

             JS CVO Secretary, Central Vigilance Commission Satarkata Bhavan, GPO Complex  (Attention:Shri Prabhat Kumar, Director)

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Block A, INA New Delhi-110023 Encl: As above”

11. In the meantime, the appellant had filed Writ Petition (Civil) No.8032

of 2010 on 23.11.2010 in the High Court  of  Delhi  praying inter  alia for

quashing of the proposal to grant extension to Respondent No.4 as CMD,

Ed. CIL for a fresh term of five years.  After the orders dated 29.11.2010 and

22.02.2011 granting extension to Respondent No.4 were issued, the High

Court  permitted  the  appellant  to  withdraw  said  Writ  Petition  and  file  a

comprehensive  Writ  Petition  incorporating  the  subsequent  events.

Accordingly Writ Petition (Civil) No.7577 of 2011 was filed by the appellant

on 09.09.2011 seeking quashing of orders dated 29.11.2010 and 22.02.2011

whereby Respondent No.4 was granted extension of five years.  The High

Court by its order dated 19.10.2011 issued Notice to CVC to clarify whether

specific  clearance  of  CVC  was  required  for  extending  the  term  of

Respondent No.4 for a period of five years as CMD Ed.CIL and whether

CVC  had  no  further  role  to  play  in  the  matter  after  it  had  addressed

communication dated 02.12.2010.

12. In response, an affidavit in reply was filed on behalf of Ministry of

HRD,  Department  of  Higher  Education  placing  all  the  relevant

correspondence.  The affidavit also placed on record, the report submitted by

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the Committee of Mr. Ashok Thakur and Mr. Sunil Kumar dated 15.02.2011.

During the course of hearing of the matter, the learned Additional Solicitor

General also placed on record, letter dated 09.11.2011 sent by CVC to the

Ministry  of  HRD,  informing  that  CVC  had  no  role  after  issuance  of

communication dated 02.12.2010 regarding Vigilance Clearance.  Said letter

dated 09.11.2011 was as under:-  

“  MOST IMMEDIATE COURT MATTER

No.010/LEGAL/083/153071 CENTRAL VIGILANCE COMMISSION

Satarkta Bhavan GPO Complex. Block-A INA, New Delhi 110 023

Dated the 9.11.2011 To, Shri K.S. Mahajan Under Secretary(Vig.) Ministry of Human Resource Development Shastri Bhawan New Delhi 110 001

Sub: CWP No. 7577 of 2011 titled “Educational Consultants  India Ltd. vs. UOI & Ors.”  Filed before the Hon’ble High  Court of Delhi.

Sir,

Please  refer  to  Ed.CIL’s  letter  No. Ed.CIL/Legal/51-2010-Hr.  dated  24.10.2011  on  the  above subject.  Copy of letter enclosed.

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2. A perusal of the HC’s  order dated 19.10.2011  reveals that the Hon’ble Division Bench has sought the response of the Commission on the following issues:

i. Whether  specific  clearance  of  CVC  was  required  for extending the terms of CMD,  Ed.CIL for another five years.

ii. Whether CVC has no further role to play in the matter after it had addressed communication dated 02.12.2010 i.e. the Vigilance Clearance granted by CVC.

3. It is stated on the basis of records that as regards point No.I,  the relevant circulars/instructions issued by DoPT (copy enclosed) may please be referred.    Regarding point No.ii, it is hereby informed that there is no role of the Commission after issue  of  Commission’s  communication  dated  02.12.2010 regarding Vigilance  Clearance.   It  is  requested  that  effective steps  may  please  be  taken  to  defend   the  interests  of  the Commission also before the Hon’ble High Court.

Yours faithfully,

(R.N. Nayak) OSD (Admn.)

Tel.: 24643592

Encl.: As above

Copy to: Shri N.S. Padmananbhan,  Chief General Manager (HR/Admn.), Ed.CIL(India) Ltd.,  10-B, IP Estate, New Delhi

110 002.    

(R.N. Nayak) OSD (Admn.)”

13. The High Court by its order dated 07.12.2011 dismissed Writ Petition

(Civil) No.7577/2011 as it found no merit in the petition.  It referred to the

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communications dated 16.03.2011 and 09.11.2011 in its order.  The relevant

portion of the order of the High Court is quoted hereunder:- “5. In  compliance  of  the  order  dated  19th October,  2011 (supra),  an  affidavit has been filed enclosing inter alia letter dated  6th January, 2011 of  the  Ministry  of  Human  Resource Development,   Government of  India to the Respondent  No.3 CVC informing that  the complaint of the Deputy Manager was motivated as a  charge sheet had been issued to him prior to his making the complaint; that he  thus did not even stand in the position of a whistle blower and that the abolition of the CVO’s post  in  Ed.CIL  (India)  Ltd.  was  with  the  sanction  of  the Ministry.    The affidavit also encloses other documents to show that the decision to extend the term of the Respondent No.4 as CMD was taken after due consideration of all the facts.  The affidavit also encloses the letter dated 16th March, 2011 of the Ministry of  Human Resource Development to the Respondent No.3 CVC closing the complaints against the Respondent No.4.

6. The learned Additional Solicitor General has during the hearing today also handed over a copy of the letter dated 9th

November, 2011 of the  Respondent No.3 CVC to the Ministry informing  that  the  Respondent  No.3  CVC had  no  role  after issuance  of  the  communication  dated  2nd December,  2010 regarding Vigilance Clearance.

7. We  are  thus  satisfied  that  there  is  no  merit  in  the allegation in  the petition of  the extension of  the term of  the Respondent No.4 being without the CVC clearance.   We are also  satisfied  that  there  is  no  other  illegality  in  the  CVC clearance.”

14. In this appeal challenging the aforesaid decision of the High Court,

certain  additional  documents  were  placed  on  record  which  are  replies

received to  queries  under  the  Right  to  Information Act.  These  additional

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documents include communication dated 03.06.2011 from CVC to the effect

that a direct enquiry under Sections 8 and 11 of the Central Vigilance Act,

2003 relating to complaints in file No.010/EDM065 and 010/EDM/064 was

entrusted to Shri Amar Mudi.  Subsequently, by way of I.A. No.6 two more

documents  were  placed on record  including “Draft  Inspection  Report  on

Contracts  awarded  by  Ministry  of  HRD  during  2007-08  to  2009-10  to

Ed.CIL” by CAG, Director General of Audit (Central Expenditure).

15. Along with affidavit in reply filed on behalf of Ministry of HRD, the

entire correspondence in the matter was placed on record.  The affidavit also

referred to the proceedings initiated against the concerned Deputy Secretary

and stated that he was charge-sheeted vide memorandum dated 05.10.2007

and 19.08.2008 purely on administrative grounds for omissions committed

by him in the year 2003-2004 and 2005-2008, which was much before the

decision of CVC considering him as a whistleblower; the fact that he was so

charge-sheeted before he was given whistleblower status was noted by CVC

vide its letter dated 09.06.2010; the concerned Deputy Secretary had filed a

Writ  Petition challenging said charge-sheets  which was dismissed by the

High Court;  thereafter disciplinary proceedings culminated in an order of

dismissal of that Deputy Secretary; and the entire sequence of events was

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intimated to CVC who had remarked that since an appeal would lie before

Appellate Authority it had decided not to interfere in the matter.

16. We  heard  Mr.  Prashant  Bhushan,  learned  Advocate  appearing  in

support of the petition and Mr. Ranjit Kumar, learned Solicitor General for

Respondents  No.1,  2  and  3.   After  hearing  the  counsel,  the  matter  was

reserved for judgment and the learned Solicitor General was asked to file

additional  affidavit  on behalf  of  CVC indicating current  position and the

format according to which clearances, if any, are either granted, denied or

deferred by CVC.  

17. Accordingly, the Additional Secretary, CVC filed additional affidavit

referring  to  Office  Memorandum dated  4.08.1988 and  placing  on record

Guidelines dated  29.10.2007  and  14.12.2007,  Circular  dated  12.07.1999,

Instructions dated 22.10.2014 and 30.10.2014, letter dated 02.12.2010 and

Formats of clearances of CVC.  An additional affidavit was thereafter  filed

by the appellant seeking to bring on record certain new facts and alleging

that  the  action  against  the  whistleblower  appeared  to  be  mala  fide  and

arbitrary.  It was submitted that though CVC had come up with format and

procedure for Vigilance Clearance vide its last affidavit, the earlier PESB

Rules and Guidelines for Vigilance Clearance were not adhered to.

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18. Affidavit  filed  by  the  Additional  Secretary, CVC makes  following

assertions:

“….It is submitted that Vigilance Clearance as such is to be granted only by the concerned Cadre authorities and therefore maintenance  of  career  profile  and  vigilance  history  of  the officers falls within their domain.  The Commission considers the  vigilance  profile  furnished by the  cadre  authorities,  duly signed by the CVO.  The inputs are also obtained from CBI and the concerned Branches in the Commission.  Based on the said information, the Commission offers its comments as to whether anything adverse is available on its records against the officer under consideration for empanelment/ selection…..…………

“…As far as the case of Ms.Anju Banerjee is concerned, the Commission had, in view of the circumstances of the case, vide its Letter No.005-VGC-151 dated 2nd December 2010, furnished a self-contained note, bringing the available inputs to the notice of  the  Ministry  of  Human  Resource  Development.   Letter No.005-VGC-151 dated  2nd December  2010 was  sent  on  the basis of the views of the Commission at that time, which were duly  communicated  to  the  Ministry  of  Human  Resource Development and advised that the facts may be placed before the  competent  authority  while  it  considers  her  case  for extension of tenure………”

19. This  affidavit  filed  on  behalf  of  CVC  adverted  to  following

circulars/guidelines/instructions:-

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(a) Office memorandum dated 4.08.1988 pertaining to scrutiny of

antecedents of persons recommended for Board level posts in Public Sector

Enterprises  providing, inter alia:-

“It  would be the primary responsibility of the Administrative Ministry/Department concerned to ensure that  the candidates, whose  appointment  as  Functional  Director/CMDs  in  public sector enterprises is recommended for being considered by the ACC,  should  be  cleared  from  vigilance  angle  and  that  the Ministry/Department  concerned  should  bring  this  fact specifically to the notice of the Minister-in-charge in respect of those persons, who are already holding Board level positions and  who  have  been  recommended  for  higher  Board  level positions, the Vigilance Clearance may be ascertained, besides other sources, from the Central Vigilance Commission.”

(b) CVC circular dated 12.07.1999 which had issued instructions,

the relevant part being:

“Vigilance Clearance should be obtained from the Commission in respect of all candidates/officers recommended by the PESB for  appointment  to  any  Board  level  position  in  PSEs, irrespective of their holding a board level or below board level post at that point of time.”

(c) Guidelines dated 29.10.2007 issued by Ministry of Personnel

and Public Grievances & Pensions (Department of Personnel and Training)

pertaining  to  “Vigilance  Clearance”  to  All  India   Service  Officers,  the

relevant part being:-

“While considering cases for grant of Vigilance Clearance for the  purpose  of  empanelment  of  AIS  officers  of  a  particular

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batch,  the  Vigilance  Clearance/status  will  continue  to  be ascertained from the respective State Government in respect of officers  serving in  connection with the affairs  of  the Central Government,  the  vigilance  status/clearance  will  be  obtained from the respective Ministry.  In all cases, the comments of the CVC will also be obtained.”

(d) Guidelines dated 14.12.2007 issued by Ministry of Personnel

and Public Grievances & Pensions (Department of Personnel and Training)

pertaining  to  grant  of  Vigilance  Clearance  to  members  of  Central  Civil

Services/Central Civil Posts providing, inter alia:-

“While considering cases for grant of Vigilance Clearance for the purpose of empanelment of members of the Central Civil Services/Central Civil posts of a particular batch, the Vigilance Clearance/status  will  continue  to  be  ascertained  from  the respective Cadre Authority  In all such cases, the comments of the Central Vigilance Commission will be obtained.”

20. The affidavit further sets out that presently following three options are

being exercised by CVC while conveying its inputs on the vigilance status of

the concerned officer:

“(A) In  respect  of  cases  where  there  is  no  adverse  input available in the data base of the Commission, feedback of CBI and vigilance profile furnished by the concerned Department, it is conveyed that there is nothing adverse on the records of the Commission. (emphasis added)

(B) In respect of cases where there is any adverse input from CBI (viz., prosecution launched against the officer, regular case under investigation, etc.,)

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Or         Vigilance profile furnished by the Department indicates any    disciplinary proceeding in progress or currency of penalty imposed is still in force

Or Data  base  of  the  Commission  indicates  any  advice

tendered  by  the  Commission  for  initiation  of  disciplinary proceedings against the officer is pending, denial of clearance is conveyed by the Commission. (emphasis added)

(C) In  respect  of  cases  where  there  are  complaints/cases pending at the end of the concerned Department, (i.e., where the officer is not clear from vigilance angle as per records of the Department), the Commission advises that the complaints/cases pending at  the end of  the Department  may be taken to their logical  conclusion  and  thereafter  the  Commission  may  be approached  for  Vigilance  Clearance  with  updated  vigilance profile of the officer.  The Department is therefore intimated that clearance in respect of the officer cannot be considered by the Commission at this stage;”  (emphasis added)

21. Guidelines  dated  29.10.2007  and  14.12.2007,  Office

Memorandum dated 04.08.1988 and CVC Circular dated 12.07.1999

were in existence and applicable when the case for grant of extension

to Respondent No.4 came up for consideration.  The record indicates

that the letter dated 2.12.2010 of CVC made two points namely that

there  were  complaints  against  Respondent  No.4  from  a  Deputy

Manager and that Respondent No.4 not only put pressure on the CVO

but also got the post of CVO abolished.    This letter then advised that

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those  facts  be  placed  before  the  Competent  Authority  while

considering the case of Respondent No.4 for extension of tenure.  The

immediate response by letter dated 06.01.2011 was that the concerned

Deputy Manager was charge-sheeted prior to his filing the  complaint

against  Respondent  No.4  and  that  the  complaint   was  not   a

whistleblower’s complaint.   It was further stated that the post of CVO

was abolished by the Ed. CIL Board which decision was subsequently

endorsed  by  the  Ministry  and  the  position  in  that  regard  was

communicated to CVC.   In any case, the allegations contained in the

complaint of the concerned Deputy Manager were looked into by a

Committee of the two senior-most Officers of the Department which

submitted  its  report  and  conclusions  in  respect  of  each  of  the

allegations in the complaint.   The Committee found no merit  in any

of the allegations.  The entire matter was thereafter placed before the

Competent  Authority who after  considering all  the issues approved

extension of tenure of Respondent No.4 for a period of five years.

The record is clear that at the initial stage when the  response from

CVC was awaited,  an extension was granted only for three months

and when the  letter from CVC was received,  the matter was  not only

clarified immediately but the allegations in the complaint referred to

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in  the letter of CVC  were also looked into by the Committee.  The

stand of CVC as evident from its letter dated 09.11.2011 is that after

having brought the relevant facets of  the matter to the notice of the

Competent  Authority  vide  letter  dated  02.12.2010,   CVC  had  no

further role  in the matter.  The record further shows that right from

06.01.2011  every  development  was  communicated  to  CVC.   We,

therefore,  find nothing wrong in the decision making process in the

present matter nor do we find any infraction in securing  and acting in

terms of the comments of CVC.  We, therefore, reject the challenge to

the orders granting extension to Respondent No.4.   

22. Affirming the view taken by the High Court, we dismiss this

appeal. No order as to costs.

….………………………..CJI  (T.S. Thakur)

..……………………………J.                            (R. Banumathi)

...……………………………J.                (Uday Umesh Lalit)

New Delhi, August 02, 2016.