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CASE NO.:

Appeal (civil) 4303 of 2002

PETITIONER:

Union of India and Anr.

RESPONDENT:

C. Dinakar, I.P.S. and Ors.

DATE OF JUDGMENT: 20/04/2004

BENCH:

CJI, S.B. Sinha & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

V.N. KHARE, CJI :

Union of India herein is in appeal before us being aggrieved by and

dissatisfied with the judgment and order dated 11.10.2001 passed by the

Karnataka High Court in Writ Petition No.5765 of 2001 whereby the High

Court has affirmed the order dated 8.2.2001 passed by the Central

Administrative Tribunal, Bangalore Bench in O.A. No.1020 of 1999.

The first respondent herein was a member of the Indian Police Service

(IPS) of 1963 batch. He although was said to be one of the senior-most

officers for the purpose of consideration of his claim for promotion to the

post of Director, Central Bureau of Investigation (CBI), ignoring his case,

Shri R.K. Raghavan, Respondent No.6 herein was appointed therein.

Questioning the said appointment as also the procedure adopted by the

Committee being violative of the directions of this Court for appointment of

Director, CBI in Vineet Narain and Others vs. Union of India Another

[(1998) 1 SCC 226], the first respondent filed an original application before

the Tribunal.

The Committee constituted for the aforementioned purpose was

required to draw a panel of IPS officers on the basis of their seniority,

integrity and experience in investigation and anti-corruption work. Final

selection, however, was to be made by the Appointment Committee of the

Cabinet (ACC) from the panel recommended by the Committee. The name

of the first respondent herein was admittedly not included in the panel

prepared by the appellant herein for the purpose of consideration of his case

for promotion to the post of Director, CBI. The panel of IPS officers which

was placed before the Committee for its consideration consisted names of 33

IPS officers, out of which 17 officers did not have the requisite background

or experience in anti-corruption activities. Out of the remaining 16 officers,

a panel of three names was prepared by the Committee. The first respondent

questioned the selection process adopted by the Central Government as

regard empanelment of the so-called eligible officers, inter alia, on the

ground that the same was contrary to and inconsistent with the directions of

this Court in Vineet Narain's case (supra). The stand of the Central

Government, however, was that such a procedure was supplemental to the

directions of this Court which had already been in existence for appointment

to the post of Director of CBI as on the date of the judgment thereof,

namely, 18.12.1997. The said stand was taken purported to be relying on or

on the basis of doctrine of sub silentio, to which this Court in Vineet Narain

(supra) apparently did not advert.

The question which, inter alia, arose for consideration before the

Central Administrative Tribunal (Tribunal) was as to whether directions

issued by this Court in Vineet Narain (supra) were required to be complied

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with rigidly till such time, the legislature steps in and substitutes the same by

an appropriate legislation.

The Tribunal allowed the original application filed by the first

respondent herein quashing the appointment of the seventh respondent and

directing initiation of a fresh process of selection in the light of the decision

of this Court in Vineet Narain (supra), holding that statutory rules or

executive instructions pertaining to the post of Director, CBI could not be

resorted therefor. The judgment and order of the Tribunal came to be

questioned by the appellant herein by filing a writ petition before the

Karnataka High Court which was marked as Writ Petition No. 5765 of 2001.

The first respondent herein also filed a writ petition questioning some

findings arrived at by the Tribunal which was marked as Writ Petition

No.6361 of 2001.

The matter came up for hearing before a Division Bench of the High

Court comprising Ashok Bhan, J. (as His Lordship then was) and

Chidananda Ullal, J. The learned Judges differed in their opinion while

delivering an order dated 8.2.2001. Whereas Bhan, J. held that the

appointment of the 6th Respondent herein as Director of CBI was in

accordance with the rules and the directions issued by this Court as also

Official Memorandum dated 20.5.1998; Ullal, J. held contra. Having regard

to the difference of opinion between two learned Judges of the Karnataka

High Court, the matter ultimately was placed before a third Judge, by

Hon'ble the Chief Justice of Karnataka High Court. The learned Judge in

terms of his judgment dated 11.10.2001 agreed with the view of Justice Ullal

although for different reasons.

Mr. Soli J. Sorabjee, learned Attorney General, appearing on behalf of

the appellants, assailed the impugned majority decision of the High Court,

inter alia, contending that the first respondent herein did not question the

applicability of the C.B.I. (Senior Police Posts) Recruitment Rules, 1996

(hereinafter referred to as 'the 1996 Rules') and filed the original application

primarily on the ground that he had not been appointed on extraneous

reasons, despite his empanelment as Director General of Police (DGP) at the

Centre, which plea was found to be not correct. The learned Attorney

General contended that the 1996 Rules which were framed under Proviso to

Article 309 of the Constitution of India specifically provided for the grade

from which promotion/deputation/transfer to the post of Director, CBI was

to be made from amongst the officers who had been approved for

appointment as DGP under the Government of India and, thus, the

observations of the Tribunal as also the majority decision of the High Court

to the effect that the directions of this Court regulating the appointment of

the CBI Director must be construed as being limited to the subsequent stages

of selection from amongst the IPS Officers who had already been

empanelled for the post of DGP at the Centre by the concerned Selection

Committee is erroneous. According to the learned Attorney General, the

directions of this Court should have been construed as an additional step in

the process of selection of the Director of CBI with a view to insulate the

sensitive post from political interference.

Mr. Sorabjee submitted that the rules framed under the constitutional

provisions having not been declared invalid, the provisions thereof were

required to be complied with and in any event as the provisions thereof can

co-exist with the directions of this Court in Vineet Narain (supra); both

should be given effect to.

The learned Attorney General also urged that the third Hon'ble Judge

committed an error in concurring with the opinion of Ullal, J. for additional

reasons that such requirement has been approved by the legislature in the

form of Central Vigilance Commission Ordinance, 1998 which was

promulgated by the President of India amending Delhi Special Police

Establishment Act, 1946 by substituting Section 4 and inserting Section 4A

therein as thereby directions of this Court were mainly sought to be

implemented; and as even in terms thereof the 1996 Rules were not

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superseded expressly.

The First Respondent herein who appeared in person had drawn our

attention to the interim orders passed by the High Court as also this Court

and submitted that despite the fact that he had retired from service, this

Court should direct that he be promoted to the post of Director, CBI with

retrospective effect so that he may get the consequential retiral benefits.

Mr. Dinakar urged that this Court in Vineet Narain (supra) had

highlighted that CBI had not been functioning properly necessitating

constitution of an Independent Review Committee (IRC). Had it been the

intention of this Court in Vineet Narain (supra) that the procedure laid down

in the 1996 Rules should be followed, it would not have directed that the

matter be considered by an independent committee which was not

contemplated under the 1996 Rules. He furthermore urged that in that view

of the matter, it would not be incorrect to invoke the doctrine of 'sub

silentio' in Vineet Narain (supra).

Vineet Narain (supra) arose out of a writ petition filed before this

Court under Article 32 of the Constitution of India as a public interest

litigation. This Court since the initiation of the writ proceedings which took

place in 1993 had passed several orders relating to the functioning of the

CBI and other Government agencies, which according to this Court had not

carried out their public duties to investigate the offences disclosed by taking

recourse to doctrine of continuous mandamus. It was observed :

"...The constitution and working of the

investigating agencies revealed the lacuna of its

inability to perform whenever powerful persons

were involved. For this reason, a close

examination of the constitution of these agencies

and their control assumes significance. No doubt,

the overall control of the agencies and

responsibility of their functioning has to be in the

executive, but then a scheme giving the needed

insulation from extraneous influences even of the

controlling executive is imperative..."

This Court noticed the relevant rules as also the functioning of IRC

but despite the same considered the need for court's intervention in para 26

and history of CBI in para 30, the validity of Directive No.4.7(3) of the

Single Directive as also the power of this Court under Articles 32 and 142 of

the Constitution of India stating :

"There are ample powers conferred by

Article 32 read with Article 142 to make orders

which have the effect of law by virtue of Article

141 and there is mandate to all authorities to act in

aid of the orders of this Court as provided in

Article 144 of the constitution. In a catena of

decisions of this Court, this power has been

recognised and exercised, if need be, by issuing

necessary directions to fill the vacuum till such

time the legislature steps in to cover the gap or the

executive discharges its role..."

Noticing that this Court in exercise of its power under Article 32 read

with Article 142 of the Constitution of India had issued guidelines and

directions in a large number of cases, it was held that the directions which

were enumerated therein required rigid compliance till such time the

legislature steps in to substitute them by appropriate legislation. The

requisite directions were thereafter issued which are contained in para 58 of

the reported judgment.

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The High Court in its impugned judgment noticed that the

appointment to the post of CBI can be made by way of transfer or deputation

from amongst the officers of IPS who have been approved for appointment

as DGP under the Government of India as regulated in terms of IPS Rules.

The High Court further noticed that the Central Government issued an

official memorandum after Vineet Narain (supra) which is to the following

effect :

"The Selection Board shall make

recommendations/decide matters strictly in

accordance with the relevant rules, policy and

guidelines having a bearing on the matter

concerned. Recommendations regarding deviations

from established policy, practices and guidelines

require to be specifically brought to the notice of

the ACC, giving reasons therefor. The decisions

of the CBI Selection Board which involve

relaxation of relevant rules, policy and guidelines

shall be only recommendatory."

Taking note of the promulgation of the Ordinance by the President of

India known as 'the Central Vigilance Commission Ordinance, 1998 which

came into force on or about 25.8.1998, the High Court observed that the

directions of this Court were issued with the express object of providing a

scheme to insulate the investigating agencies from extraneous influences of

the executive, which reveals that this Court had issued directions having

carefully and thoroughly examined the entire structure and mode of

functioning of the CBI and felt need to improve and innovate the procedure

and fructify the new ideas for betterment of the polity.

It is not in dispute that on the basis of the judgment in Vineet Narain

(supra) the appellant did intervene by promulgation of the aforementioned

Ordinance and, thus, a subordinate legislation in the form of the 1996 Rules

would cease to exist as the Ordinance provides for the process of selection to

the post of Director, CBI.

It is not in dispute that the Parliament had since given its approval to

the said Ordinance enacting the Central Vigilance Commission Act, 2003,

which received the assent of the President of India on 11.9.2003. By reason

of Section 26 of the said Act, the Delhi Special Police Establishment Act,

1946 was amended which is to the following effect :

"26. In the Delhi Special Police Establishment Act, 1946, -

(a) after section 1, the following section shall be inserted,

namely :-

"1A. Words and expressions used herein and not defined

but defined in the Central Vigilance Commission Act,

2003, shall have the meanings, respectively, assigned to

them in that Act";

(b) for section 4, the following sections shall be substituted,

namely :-

"4(1) The superintendence of the Delhi Special

Police Establishment in so far as it relates to investigation

of offences alleged to have been committed under the

Prevention of Corruption Act, 1988, shall vest in the

Commission.

(2) Save as otherwise provided in sub-section (1),

the superintendence of the said police establishment in all

other matters shall vest in the Central Government.

(3) The administration of the said police

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establishment shall vest in an officer appointed in this

behalf by the Central Government (hereinafter referred to

as the Director) who shall exercise in respect of that

police establishment such of the powers exercisable by

an Inspector-General of Police in respect of the police

force in a State as the Central Government may specify

in this behalf.

4A.(1) The Central Government shall appoint the

Director on the recommendation of the Committee

consisting of \026

(a) the Central Vigilance Commissioner \026 Chairperson;

(b) Vigilance Commissioners - Members;

(c) Secretary to the Government of India

in-charge of the Ministry of Home

Affairs in the Central Government - Member;

(d) Secretary (Coordination and Public

Grievances) in the Cabinet

Secretariat - Member.

(2) While making any recommendation under sub-

section (1), the Committee shall take into consideration

the views of the outgoing Director.

(3) The Committee shall recommend a panel of

officers \026

(a) on the basis of seniority, integrity and experience

in the investigation of anti-corruption cases; and

(b) chosen from amongst officers belonging to the

Indian Police Service constituted under the All-

India Services Act, 1951

for being considered for appointment as the Director."

From the above it is clear that the procedure laid down in the Rules is

inconsistent with the directions issued by this Court in Vineet Narain

(supra). As noticed hereinbefore, the said directions were issued pending

legislation in this behalf by the Parliament. Once by reason of a

Parliamentary Act, the procedure for appointment of the Director, CBI has

been laid down, it is idle to contend that the 1996 Rules would still survive.

The composition of the Committee for the purpose of preparation of panel

has been laid down in sub-section (1) of Section 4A. While making the

recommendation by preparing a panel of officers, the Committee is not only

to take into consideration the views of the outgoing Director but the same

would also be based on clauses (a) and (b) of sub-section (3) of Section 4A

of the Act.

However, it commends to us that if in terms of Section 4A of the

Delhi Special Police Establishment Act, all the eligible IPS officers are

required to be considered, the same may give rise to practical difficulties. It

is not in dispute that the post of Director, CBI, is considered to be a superior

post. It is a tenure post and on the expiry of the period specified therefor,

the officer may be transferred to any other post or reverted to his own post.

Seniority although is a criteria but merit indisputably would play a decisive

role which is required to be determined with other relevant considerations,

namely, integrity and experience in the investigation in anti-corruption

cases.

We, therefore, feel that in the interest of justice, a clarification is

required to be issued as regard seniority of the officers who are eligible for

consideration therefor to the effect that ordinarily all the IPS officers of the

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senior-most four batches in 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. The

aforementioned clarification, in our considered opinion, would not lead the

Committee to consider the cases of a large number of officers unnecessarily

and further would act as an insulation to the possible misuse or arbitrary

exercise of the power of the concerned authority. We, therefore, direct that

as regards seniority mentioned in Section 4A of the Act, ordinarily all the

IPS Officers of the senior-most 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. This

direction is in the nature of explanation to Section 4A of the Act. Learned

Attorney General consented to the said direction.

Coming to the question as to what relief(s) the first respondent is

entitled to, we find that the first respondent as also Shri Raghavan have

retired. We are, therefore, of the opinion that no relief in favour of the first

respondent, as prayed for by him, can be granted as for all intent and

purpose the directions issued by the Tribunal have been rendered

infructuous. This Court cannot in exercise of its jurisdiction under Article

136 of the Constitution of India, issue a writ of or in the nature of mandamus

directing Union of India to appoint the first respondent as Director, CBI with

retrospective effect. Moreover, the first respondent was never empanelled

and, therefore, no question for issuing direction as regards to his

appointment to the post of Director could arise. We, therefore, modify the

order and judgment under appeal to the aforementioned extent.

With the aforesaid modification, the appeal stands disposed of. There

shall be no order as to costs.