Appointment must also satisfy decision-making process of recommendation
The Supreme Court on Thursday faulted the high power committee (HPC), headed by Prime Minister Manmohan Singh, for its failure to consider relevant material in recommending P.J. Thomas for the post of Central Vigilance Commissioner (CVC).
A three-judge Bench headed by Chief Justice of India S.H. Kapadia said: “The Attorney-General, G.E. Vahanvati, 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 recommendation, dated September 3, 2010, of the HPC is entirely premised on the blanket clearance given by the CVC [Central Vigilance Commission] on October 6, 2008 and on the fact of Mr. Thomas having been appointed Chief Secretary of Kerala on September 18, 2007, his appointment as Secretary of Parliamentary Affairs, and his subsequent appointment as Secretary, Telecom.”
In the process, the HPC, for whatever reasons, failed to take into consideration the pendency of the palmolein case before the Special Judge, Thiruvananthapuram; the sanction accorded by the Government of Kerala on November 30, 1999, under Section 197 Cr.PC for prosecuting Mr. Thomas, among others, and the judgment of the Supreme Court that the registration of an FIR against the former Chief Minister, K. Karunakaran (since deceased) and others could not be held to be the result of mala fides or actuated by extraneous considerations. “Therefore, even on personal integrity, the HPC has not considered the relevant material,” the Bench said.
“Appointment to the post of CVC must satisfy not only the eligibility criteria of the candidate but also the decision-making process of the recommendation. The government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions.”
The Bench, after perusing the files, said: “The entire emphasis has been placed by the CVC [Commission], the DoPT [Department of Personnel and Training] and the HPC only on the biodata of the empanelled candidates.” The notings of the DoPT, dated June 26, 2000; January 18, 2001; June 20, 2003; February 24, 2004; October 18, 2004; and November 2, 2004, “have all observed that penalty proceedings may be initiated against Mr. Thomas. Yet in the clearance given by the CVC [Commission] on October 6, 2008, and in the brief prepared by the DoPT dated September 1, 2010, and placed before the HPC, there is no reference to the earlier notings of the then DoPT, nor has any reason been given why the CVC [Commission] had changed its views while granting vigilance clearance on October 6, 2008. Consequently, the appointment of Mr. Thomas was in contravention of the provisions of the 2003 Act.”
‘Contention without substance'
The Bench pointed out that one of the main contentions advanced on behalf of the Union of India and Mr. Thomas was that once the CVC (Commission) clearance had been granted 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 to his appointment as CVC on the basis of the pending case. This contention was without substance, the Bench said. “In this case, our judgment is strictly confined to the legality of the recommendation dated September 3, 2010, and the appointment based thereon. 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 Mr. Thomas, and any reference in our judgment to the palmolein case should not be understood as our observations on the merits of that case.”
The Bench accepted the Attorney-General's stand that the advice tendered to the President by the Prime Minister on the appointment of the CVC would be binding on her and that there was no discretion vested in the President in such appointments.