Supreme Court quashes appointment of PJ Thomas as CVC

The Supreme Court today quashed the appointment of PJ Thomas as central vigilance commissioner (CVC), saying the   recommendation made by the high-powered committee headed by the prime minister did not consider the relevant material and as such its advice 'does not exist in law'.

"We declare that the recommendation made by the high-powered committee is 'non-est' in law. Which means that the recommendations made on September 3, 2010 does not exist in law. Consequently, the appointment of Thomas goes," a bench comprising Chief Justice SH Kapadia and Justice KS Radhakrishnan and J Swantatntra Kumar said.

The bench severely criticised the committee for not considering the relevant material including the pending criminal case against Thomas in the Palmolein import case and the recommendations of the Ministry Of Personnel, Public Grievances and Pensions (DoPT) between 2000-04 for initiating disciplinary proceedings against him.

"It is the duty of the high-powered committee (HPC) to not to recommend the name of a person who can affect the  institutional integrity of the CVC," the bench said, adding the institutional integrity and the integrity of a person holding the post of CVC is the touchstone of the office under the CVC Act.

The court said the HPC failed to consider relevant material against Thomas and the entire focus was on his bio-data and none of the government bodies including the DoPT focussed on larger issue of institutional integrity. 

The apex court said that if the selection process adversely affects the institution then it is the duty of the authority not to recommend such persons and in the present case, this vital aspect was not taken into account by the HPC.

"In our opinion, CVC is an integrity institution," the bench said, adding the HPC has to keep in mind the institutional integrity of the CVC while making recommendation for the appointment of a candidate to the office.

The court 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.

It said the CVC is India's integrity commission, which also exists in several other countries including the US, the UK, Australia, Hongkong and Canada, where it is considered as an integrity institutions.

"The CVC is also one such institution and it is clear from the provisions and ambit of the CVC Act," the bench said.

The bench also rejected the government's contention that vigilance clearance given by the CVC in 2008 was the basis for empanelment of Thomas as a candidate for the post of the CVC.

On the issue of vigilance clearance, the court said, "This argument is without merit and we find no substance in it".

It said the HPC and no government authority focused on the larger issue of institutional integrity of the office of CVC while recommending the name of Thomas.

While observing that the touchstone for the appointment of CVC is the institutional integrity as well as the personal integrity of the candidate, the court said in future, appointments should not be restricted to civil servants alone but people of impeccable integrity from other fields should also be considered.

The bench said if there is a dissent note by any of the three members of the high-power panel, it has to be given with sufficient reasons and has to be considered by a 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, it said.

While not considering the relevant material of the DoPT, the bench said, "It is surprising that there were notings by the DoPT between 2000 and 2004 and all observed that penalty proceedings be instituted against Thomas. Such notings were not considered in the case of Thomas, who was given the CVC's clearance on September 6, 2008.

"No reference of such notings made between 2000 and 2004 is there. Therefore, on personal integrity, HPC did not consider the relevant material.

"We are concerned with the institution and its integrity but not with the individual," the bench said, adding the impartiality of the institution has to be maintained which is envisaged in the CVC Act.

The court scrapped Thomas' appointment as CVC on a PIL by civil society, Center for Public Interest Litigation (CPIL) and retired bureaucrats and police officials, including former chief election commissioner JM Lyngdoh, challenging his appointment in view of a criminal case pending against him in a Kerala court.

Thomas was appointed CVC on September 7 last year. Opposing the petitions seeking his removal, Thomas had contended that he was appointed as the CVC after the vigilance clearance given to him for his appointment as secretary in the Union  government and he needed no further vigilance clearance before his appointment as the CVC.

He had also contended that the corruption case pending against him in the Kerala court was a result of political rivalry between former chief minister K Karunakaran and present chief minister VS Achuthanandan.

The petitioners, however, had contended that Thomas could not be considered as a person of "impeccable integrity" as a chargesheet was filed against him in Palmolein import scam when he was a secretary in the Kerala ministry of food and civil supplies. He had secured bail from a local court.

The petitioners had also pointed out that he was appointed despite strong objections from from leader of the opposition in Lok Sabha Sushma Swaraj who was a member of the 3-member panel headed by Prime Minister Manmohan Singh to clear his appointment. The other member was home minister P Chidambaram.

The petitioners also said he could not be appointed the CVC on account of "conflict of interest" as till recently he was serving as telecom secretary and that there was the allegation that he was involved in an alleged "cover-up" of second generation mobile spectrum allocation scam.