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2004(5) Supreme 416
SUPREME COURT OF INDIA
(From Karnataka High Court)
V.N. Khare, CJI., S.B. Sinha & Dr. AR. Lakshmanan, JJ.
Union of India & Anr. -Appellants
versus
C. Dinakar, I.P.S. & Ors. -Respondents
Civil Appeal No. 4303 of 2002
Decided on 20-4-2004
Counsel for the Parties :
For the Appellants : Soli J. Sorabjee, Attorney General, Dhruv Mehta, P. Parmeswaran, Advocates.
For the Respondent : In-person.
Held : 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 penal 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 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. (Paras 19 to 21)
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. (Para 22)
JUDGMENT
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.
2. 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.
3. 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.
4. 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 with rigidly till such time, the legislature steps in and substitutes the same by an appropriate legislation.
5. 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.
6. 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 herei
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