IMPORTANT POINTS
Question of primacy to views of the person consulted can arise only when there is no selection committee. When there is a selection committee, consultation means discussion.
Content of consultation is beyond judicial review. Lack of effective consultation, however, is amenable to judicial review.
Appointment of Shri Rakesh Asthana as Special Director CBI is not illegal.

ORDER

R.K. Agrawal, J.

1) By means of the present public interest litigation (PIL), the petitioner, Common Cause, a Registered Society, through its President Shri Kamal Kant Jaswal, questions the validity of the order dated 22.10.2017 issued by Secretariat of the Appointments Committee of the Cabinet, Department of Personnel and Training (DoPT) appointing Shri Rakesh Asthana – Respondent No. 2 herein as the Special Director, Central Bureau of Investigation (CBI) on the ground that the appointment has been made illegally, arbitrarily, mala fide and in violation of the principles of impeccable and institutional integrity.

2) We have heard learned Shri Prashant Bhushan, learned counsel for the petitioner and Mr. K.K. Venugopal, learned Attorney General appearing for the Union of India.

3) Shri Prashant Bhushan, learned counsel contended that this Court in Vineet Narain and Others vs. Union of India and Another (1998) 1 SCC 226 has laid down the procedure for appointment of Director, CBI which is as under:-

“58.6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.”

4) Learned counsel further contended that the CBI has been established under the Delhi Special Police Establishment Act, 1946 (in short ‘the DSPE Act’) and to give statutory effects to the directions given in Vineet Narain (supra), the DSPE Act was amended in 2003 vide Central Vigilance Commission Act, 2003 to provide that the Director, CBI and officers above the post of Superintendent of Police shall be appointed by the Central Government on the recommendations of the Central Vigilance Commissioner, the Vigilance Commissioners and two Secretaries to the Government of India.

5) The DSPE Act was further amended by the Lokpal and Lokayuktas Act, 2013 to provide for a mechanism for the appointment of Director, CBI as well as for the appointment of officers to the post above the Superintendent of Police. As in the present petition, the selection and appointment of the Special Director, CBI is under challenge and not the selection and appointment of the Director, CBI, only Section 4C, as substituted by the Act of 2013, has to be considered. Section 4C of the DSPE Act provides for the procedure for appointment of Superintendent of Police and above reads as under:-

“4C. Appointment for posts of Superintendent of Police and above extension and curtailment of their tenure, etc. —

(1)The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment, on the recommendation of a Committee consisting of:-

a) The Central Vigilance Commissioner Chairperson

b) Vigilance Commissioners Members

c) Secretary to the Government of India in charge of the Ministry of Home Member

d) Secretary to the Government of India in charge of the Department of Personnel Member

Provided that the Committee shall consult the Director before submitting its recommendation to the Central Government.

(2) On receipt of the recommendation under sub-Section (1), the Central Government shall pass such orders as it thinks fit to give effect to the said recommendation.”

6) Thus, the appointment on the post of Superintendent of Police and above has to be made by the Selection Committee in consultation