SC strikes down CVC appointment, calls it illegal

Cancelling Thomas` appointment as CVC, the SC observed that his appointment was not as per set norms and thus illegal.

Updated: Mar 03, 2011, 23:20 PM IST

New Delhi: Dented by scams, the government Thursday suffered a major blow when the Supreme Court struck down the appointment of P J Thomas as CVC, slamming the Prime Minister-headed High-Powered Committee for the appointment of a person facing a criminal case.

Holding that the touchstone for the appointment of CVC is the "institutional integrity" as well as the personal integrity of the candidate, the court also faulted the HPC`s decision to recommend Thomas(60) for appointment as Central Vigilance Commissioner on grounds of arbitrariness, ignoring "relevant material".

A three-member bench of the court headed by Chief Justice
S H Kapadia rejected the contention of Thomas and the
government that the appointment of CVC cannot be brought under
judicial review and said the legality of the recommendation
can very much be reviewed by it.

Coming down heavily on the HPC`s decision, the court said
in future appointments to CVC`s post should not be restricted
to civil servants alone and that people of impeccable
integrity from other fields should be considered.

Thomas, a former IAS officer of 1973 batch who was
appointed as CVC on September 7 last despite a dissenting note
by leader of opposition Sushma Swaraj in the HPC, is facing a
corruption case in a Kerala court relating to Palmolein import
scam that allegedly caused a loss of over Rs two crore to the

Thomas was the Food Secretary in the Kerala government
at the time of import and the then chief minister
K Karunakaran was also another accused in the case.
Karunakaran died recently.

Disposing of a PIL filed by an NGO CPIL and others that
included former CEC J M Lyngdoh, the court said, "It is
declared that the September 3, 2010 recommendation of the HPC
recommnending the name of P J Thomas as CVC under the proviso
to Section 4(1) of the 2003 Act is non-est(does not exist) in
law and, consequently, his impugned appointment as CVC is

The 71-page verdict written by Justice Kapadia noted
that not only the corruption case was pending against Thomas
but there were notings by the Department of Personnel and
Training (DoPT) which had repeatedly recommended "penalty
proceedings" against him between 2000 to 2004.

The bench, which also included justices K S
Radhakrishnan and Swatanter Kumar, held that institutional
integrity of the CVC is the primary consideration which the
HPC failed to take into account while recommending Thomas for
appointnment as CVC.

"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 CVC. We do not wish to discount
personal integrity of the candidate," said the bench.

But, the court said, "What we are emphasizing is that
institutional integrity of an institution like CVC has got to
be kept in mind while recommending the name of the candidate.

"Whether the incumbent (Thomas) 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 the present case the entire emphasis has been
placed by the CVC, the DoPT and the HPC only on the bio-data
of the empanelled candidates. None of these authorities have
looked at the matter from the larger perspective of
institutional integrity including institutional competence and
functioning of CVC," it said.

In the context of dissent registered by leader of the
opposition Sushma Swaraj, who was a member along with Prime
Minister Manmohan Singh and Home Minister P Chidambaram in the
HPC, the court said if there was a dissent note by any of the
members of the HPC it has to be given with sufficient reasons
and has to be considered by the majority.

Further, the majority should also give reasons for
their decision as this will lead to a transparent process in
public interest and also inspire public confidence.

"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," said the bench.

"If a statutory body like HPC, for any reason
whatsoever, fails to look into the relevant material having
nexus to the object and purpose of the 2003 CVC Act or takes
into account irrelevant circumstances then its decision would
stand vitiated on the ground of official arbitrariness," the
bench said.

"The HPC had to take into consideration what is good
for the institution and not what is good for the candidate,"
the bench said.

It criticised the panel headed by prime minister that
it took its decision only after considering Thomas` bio data
and failed to look beyond it, ignoring the corruption case
pending against him.
"Moreover, we are surprised to find that between 2000
and 2004 the notings of DoPT on 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 Thomas," said the bench.

"Whether state should initiate such proceedings or the
Centre should initiate such proceedings was not relevant. What
is relevant is that such notings were not considered at all,"
the bench said.

Thomas was the Union Telecom secretary before he was
made the 14th CVC in September last year.