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Supreme Court lays down guidelines for appointment

Legal Correspondent

Rejects contention that it must be through consensus

Appointment to CVC post shall not be restricted to civil servants

While forwarding names, the empanelling authority shall give all information — favourable or adverse

New Delhi: The Supreme Court on Thursday rejected the contention that the appointment of Central Vigilance Commissioner must be made through consensus among members of the High Power Committee.

A three-judge Bench comprising Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Swatanter Kumar said: “We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a “veto right” on one of the members of the High Power Committee (HPC). To confer such a power on one of the members would amount to judicial legislation.”

The Bench said: “Under the proviso to Section 4(1) of the CVC Act, Parliament has put its faith in the HPC consisting of the Prime Minister, the Minister for Home Affairs and the Leader of the Opposition in the House of the people. It is presumed that such HPC entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate the doctrine of reasonableness or equality.

“The 2003 CVC Act is enacted with the intention that such HPC will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest.

“However, the question still remains as to what should be done in cases of difference of opinion amongst the members of the HPC. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed, transparency would emerge which would also maintain the integrity of the decision-making process.”

Pointing out that the CVC Act had restricted the choice of candidates for the post of Central Vigilance Commissioner only to civil servants, the Bench said: “No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. In future, the zone of consideration 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.”

The Bench made it clear that empanelment should be carried out by a person not below the rank of Secretary to the Government of India in the Ministry concerned 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.”

Transparent process

It said: “The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve 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.”

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