CVC clearance to Thomas questioned, SC to frame guidelines

The apex court has said that it would lay down guidelines for future appointment to the post of CVC.

Last Updated: Feb 03, 2011, 23:15 PM IST

New Delhi: Government today faced yet
another day of searching questions in the Supreme Court over
vigilance clearance given to P J Thomas, maintaining that the
CVC cannot be the final authority in giving final clearance to
an official facing corruption case.

The Court also said it would lay down guidelines for
future appointment to the post of Central Vigilance
Commissioner.

"CVC cannot be the final authority," a bench headed by
Chief Justice S H Kapadia said while questioning the clearance
given to Thomas by the CVC in 2007-08 for being appointed as
Secretary and subsequent empanelment for the post of CVC.

"CVC cannot say that the court might have applied its
mind (while hearing the case) and can the Commission say there
is no merit in the case while giving clearance to an officer,"
said the Bench, which also comprised justices K S
Radhakrishnan and Swatanter Kumar.

The remarks of the Bench came after submissions were
made by Attorney General G E Vahanvati, who said there was "no
stigma" if a chargesheeted officer is considered for the post
of CVC.

"The filing of a chargesheet is not a stigma," he said
when the Bench asked him "does it not, in normal course, be a
stigma when a chargesheet is filed against an officer".

Vahanvati made the submission while responding to
various questions by the bench, which also sought his view on
the criteria of impeccable integrity required for appointment
as Central Vigilance Commissioner.

"Impeccable integrity is an important requirement,"
he said.

However, when the Bench asked does the criterion of
impeccable integrity apply when there is a stigma of
chargesheet, the Attorney General said "this is an area of
grey".

While Vahanvati was making the submissions, advocate
Prashant Bhushan, appearing for the Centre for Public Interest
litigation, which has challenged appointment of Thomas as CVC,
said various factors about the Palmolein import case were not
before the CVC when it gave vigilance clearance to him.

The CVC had not taken into account the pending
chargesheet, sanction for his prosecution by the state
government, the case diary, the report of the committee of
public undertaking in Kerala and the CAG report on the
Palolein import while giving vigilance clearance to Thomas.

"The CVC gave clearance to Thomas only on the basis of
the two-page note placed before it by the Department of
Personnel and Training," he said.

At the outset when it was informed by the Attorney
General that there were no guidelines or rules for appointment
of CVC, the Bench said "for future appointment we would lay
down guidelines that there should be some procedure".
The Bench stressed that the appointment has to be in
accordance with the Vineet Narain case judgement which makes
it clear that the CVC has to remain independent, impartial,
free and fair and be uninfluenced by the political executive.

"The appointment has to be read or made in the light
of the judgement in the Vineet Narain case and CVC Act. If
there is some gap we will fill it up by our interpretation,"
the Bench said.

Vahanvati, who said no further inquiry was required
once a person is appointed as Secretary on clearance by CVC,
justified Thomas` appointment by saying that the vigilance
clearance given to him in 2007 was not challenged by anyone.

"Nobody ever challenged what CVC said. All these facts
were placed before him (CVC)," he said in response to the
question of the Bench that the details about the palmolein
case was not put before the Commission.

He said there was a detailed office memo in 2005
dealing with the case in which the state government had said
that the whole case has to be withdrawn.

However, the Bench said "totality of the circumstances
has to be considered in the case".

The court also wanted to know if the CVC report on
Thomas was placed before the committee headed by the Prime
Minister, which went into the selection of CVC.

The Attorney General said "It is not required to be
placed once empanelment is given. Once there is a CVC
clearance and empanelment, it is difficult to hold another
inquiry."

Strongly supporting the appointment of Thomas as CVC,
Government said "the fact that the case is pending against him
does not mean that he does not have impeccable integrity".

"It was legitimate to proceed on the basis that there
was no impediment in the way of his appointment on the basis
of the pending case which had been found to be without any
substance," he said referring to the CVC clearance given to
Thomas.

"It is well settled that the question of suitability
of the candidate is squarely the domain of the appointing
authority. The argument about suitability of the candidate
cannot be raised in the judicial proceeding," he said.

However, this submission evoked sharp reaction from
the Bench which said if there can be a judicial scrutiny of
the amendments in the constitution how can it be that there
cannot be judicial review of such appointments.

The court wanted to know that when 54 persons were
empanelled for the post, then on what basis three names were
shortlisted for consideration by a three-member committee
headed by the Prime Minister.

The Attorney General shot back that "it is well
settled that in matters of preparation of the list or
recommendations there is no requirement to record reasons".

He also said there is no need of "unanimity" in the
three-member committee on the appointment of CVC and "it
cannot be said that the Leader of Opposition, who is the
member of the committee in addition to PM and Home Minister,
has a veto power".

He was referring to a dissent note given by Sushma
Swaraj, who had said "I disagree". Vahanvati said the criterion of an outstanding person
with impeccable integrity has to be taken undoubtedly into the
consideration for appointment as CVC.

The bench, however, said, that in the given case, the
issue of chargesheet and sanction for prosecution of Thomas
were not considered by the Personnel and Training ministry and
others.

The bench wanted to know if material facts were not
considered, then what would be the position.

At this point, senior advocate K K Venugopal submitted
that Thomas had never gone to court relating to the case.

"You cannot have it both ways. You cannot say the
matter is pending in the Supreme Court and also that you have
not gone to the court," the judges said.

The bench`s remarks were in reference to a petition
filed by former Kerala Chief Minister K Karunakaran opposing
his prosecution in the Palmolein import case.

Venugopal, who commenced arguments on behalf of
Thomas, contended that he is a victim of a clash between two
political parties.

The bench wanted to know from him if any independent
disciplinary inquiry was conducted against him or not.

"Why there is no such inquiry in this case?" the bench
asked referring to an apex court judgement.

Venugopal said empanelment was cleared by the CVC on
the basis of a note prepared by the DoPT.

"When he is facing a charge under Section 120 B of the
IPC, is it in the realm of the CVC to travel beyond the due
process. How can CVC clear him?" the bench asked.

Venugopal said because of some political differences
in the state, the case was filed in the Palmolein import.

"On the contrary, when you know there is a see-saw
political battle, it is all the more necessary for the state
government to order an independent inquiry into the case,"
the bench said.

Venugopal said the bureaucrat functions under the
control of the state government but the power to remove vests
with the Centre.

He said the state government has a right to prepare a
charge sheet and give him an opportunity to be heard on the
report as forwarded to the Centre, which on that basis
conducts further inquiry and removes an officer.

The court, however, asked, "Is there any bar on the
Central government to conduct its own inquiry without
reference from the state?"

There is nothing in the rule to prevent Centre from
conducting its own inquiry, the bench remarked.

When the hearing had commenced, the Bench wanted to
know from the Attorney General whether the government
maintains
service file of bureaucrats, and if it does, then whether it
was placed before the Committee.

PTI