Thaindian News

New Delhi, March 3 (IANS) The Supreme Court Thursday, while quashing the appointment of P.J. Thomas as central vigilance commissioner (CVC), also laid down the guidelines for making future appointments to ensure these were done in a transparent manner that was in harmony with the CVC Act.

The key guidelines laid for the appointment of the CVC are:

* In future, the zone of consideration (of candidates for appointment as the CVC) shall not be restricted to civil servants.

* All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.

* If one member of the HPC (high power committee that recommends the appointment of a CVC) dissents, that member should give reasons for the dissent and if the majority disagrees with the dissent, then the majority will give the reason for overruling the dissent.

* The empanelment of candidates 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.

* The empanelment shall be carried out by a person not below the rank of secretary to the government of India in the ministry concerned.

* The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information whether favourable or adverse. Nothing relevant or material should be withheld from the selection Committee.

In this contxt, the court noted that would not only be useful but would also serve the 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.

* The selection committee may adopt a fair and transparent process of consideration of the empanelled officers.

The court also rejected Thomas’ contention that once he had been cleared by the pervious head of the anti-corruption watchdog for a posting in the central government, the criminal proceedings against him in a graft case could not be a hurdle to his selection as the CVC.

An apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar, while quashing Thomas’ appointment, said: “We find no merit in (his) submissions.”

Thomas was facing criminal proceedings in the Kerala palm oil import case when he was selected by a high powered committee (HPC) for being appointed the CVC.

“Judicial review seeks to ensure…whether relevant material and vital aspects having nexus to the object of the 2003 (CVC) Act were taken into account when the decision to recommend (Thomas as CVC) took place on Sep 3, 2010,” the court said.

The judgment said that “the 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. 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”.

While elaborating on the procedure of the appointment of the CVC, the judgment said: “If a statutory body, like the 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.”

The “system of governance established by the constitution is based on distribution of powers and functions amongst the three organs of the state, one of them being the executive whose duty is to enforce the laws made by parliament and administer the country through various statutory bodies like the 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.”

“In its functions, the CVC is similar to the Election 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,” the judgment said.

“If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate,” the court said.

“Thus, the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation under Section 4 (of the Act) for appointment of the Central Vigilance Commissioner,” the court said.

“In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of P.J. Thomas for appointment as the Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate,” the judges said.

“What we are emphasising is that institutional integrity of an institution like the 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 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,” the judgment said.