NGO Common Cause files PIL in SC challenging the appointment of CVC and VC as being in violation of SC guidelines

A PIL has been filed in the Supreme Court challenging the appointment of Mr. K.V. Chaudhary as the Central Vigilance Commissioner and Mr. T.M. Bhasin as the Vigilance Commissioner as being “illegal and arbitrary”.

The PIL has been filed by the NGO, Common Cause; Admiral L. Ramdas- former Chief of Naval Staff; Dr. E.A.S. Sarma- former Secretary of Government of India; Mr. Ramaswamy R. Iyer- former Secretary, Government of India, Dr. B.P. Mathur, Former Deputy CAG and Shri S. Krishnan, former member, Department of Posts.

The petitioners have claimed that there was complete non-transparency on the part of the Central Government in making the appointment of the CVC and VC. “There was no system followed and there was no scope for public inputs,” claim the petitioners who have further submitted that the representations, inputs and complaints made against the proposed appointments were not duly considered.

The Petitioners also claim that the appointments “violate the principles of ‘impeccable integrity’ and ‘institutional integrity’ laid down in the landmark judgments of this Hon’ble Court in Vineet Narain case (1998) 1 SCC 226 and Centre for Public Interest Litigation (CPIL) case (2011) 4 SCC 1.”

In the CPIL case, the Apex Court had found and held that the recommendation of the selection committee to the President for appointment of the then CVC was non est in law. This was so held since the Court found that the appointment would dilute the integrity of the statutory institution of the Central Vigilance Commission. It was held that the test is whether the individual would be able to perform his duties.

The Court further passed important directions to be followed for selection of the CVC. For the appointment of Chief Vigilance Officers (CVOs) in various departments/ministries who work under the supervisory and administrative control of the Central Vigilance Commission, the Commission requires that they must have “unblemished record” of service.

In Vineet Narain case the Apex Court had directed that “The Central Vigilance Commission shall be given statutory status. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.”

In CPIL case, the Apex Court had issued inter alia the following directions:

“(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.

(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

(v) …

(vi) The empanelling authority, while forwarding the names of empanelled officers/persons, shall enclose complete information, material and data of the officer/person concerned, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks, are specifically brought to the notice of the Selection Committee.

(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.”

Allegations leveled by the petitioner against CVC, Mr. K.V. Chaudhary

Mr. K.V. Chaudhary was appointed as the CVC on June 6, 2015 for a period of four years. Before his appointment as CVC, he was the Chairperson of CBDT and Advisor to the SIT on black money.

The petition alleges that even before he was appointed as the CVC, several important representations were made to the Prime Minister of India (who heads the selection panel as per Section 4 of the 2003 Act) and others including Home Minister, Finance Minister and the leader of largest part in Opposition. The said representations gave specific reasons as to why Mr. K.V. Chaudhary is not eligible and suitable for heading this important integrity institution. However, despite that the Government went full steam ahead to appoint their favored candidate.

Mr. Prashant Bhushan, representing the petitioners, had also written a letter to the Prime Minister, pointing out as to why Mr. Chaudhary is not eligible and suitable for the position of the CVC. Mr. Ram Jethmalani had also written to the Prime Minister, expressing his objections regarding the same. He again wrote on 02.06.2015 stating that appointment of Respondent No. 2 would be “the greatest disaster that will fall on this unfortunate nation.”

It also brings to the Court’s notice that Mr. Chaudhary was directly under CBI’s scanner in the ‘Stockguru Scam’ where senior Income Tax officers were involved.

A complaint was also made by Mr. Anil Agarwal to the Finance Ministry on 10.06.2014 as to how Mr. Chaudhary was being shielded in the Stock Guru scam.

Mr. Chaudhary also allegedly abused his position as Member (Investigation) CBDT to under-assess the income of a company M/s Flora and Fauna Housing & Land Development Pvt. Ltd., which is associated with infamous Mr. Ponty Chadha, by an amount of Rs 234 crores. He followed a procedure allegedly unknown to law by giving a direction to the Assessing Officer to dispose of the case in this particular manner.

It had been further alleged by the Petition that Mr. Chaudhary was investigating the Radia tapes and did not take any action on evidence available with him. He was also investigating the Income Tax cases in the 2G scam, and failed to take any action unlike the CBI or the ED which filed several chargesheets. The said facts ought to have been examined by the Union of India before making the appointment.

Allegations against VC, Mr. T.M. Bhasin

Mr. Bhasin was appointed as the VC on 11.06.2015 for a period of four years. He had been serving as the CMD of the Indian Bank from 01.04.2010, which is a public sector bank with its headquarters in Chennai, Tamil Nadu.

He was indicted in a detailed inquiry by the Central Vigilance Commission in 2013 for forging and tampering with appraisal report of the then General Manager of the Indian Bank, which is a criminal offence.

Former Union Minister and currently a senior member of the ruling party Mr. Subramanian Swamy had written a strongly worded letter to the Prime Minister on 11.06.2015 stating that charge against Mr. Bhasin is “very serious” and the recommendation of the selection committee to appoint him as VC must be withdrawn. He said “finding of moral turpitude by CVC of Mr. Bhasin makes him unfit to keep the position of Vigilance Commissioner.”

The petitioners allege that the Union Government has appointed a person who himself has been severely indicted for serious criminal conduct by the same Commission of which he is now a part. “Thus, by no stretch of imagination he can be said to have impeccable integrity or unblemished record as is required as per law. Hence his appointment is liable to be quashed,”says the petition.

The petitioners therefore aver in their petition that the persons sought to be appointed as CVC and Vigilance Commissioner “cannot be said to be persons of impeccable integrity as highlighted in the present petition. Therefore their appointments are illegal, arbitrary, in negation of rule of law and therefore in violation of Articles 14 and 21 of the Constitution of India.”

The petitioners further aver in their petition that the Apex Court in the CPIL case had directed that in all future appointment of CVCs and VCs, the empanelling authority shall produce all material and records, whether favourable or adverse to the candidates, before the selection committee under Section 4 of the 2003 Act, and that “in the present case, non-production of serious adverse material & representations against Respondent No.s 2 and 3 would vitiate the appointment process and in case the said material was produced and despite that the appointment was made, then that appointment would be mala fide, arbitrary and illegal, as per the judgment of this Hon’ble Court in CPIL case. Petitioners have learnt that representations and adverse material against Respondent No. 2 and 3 was not placed before the Selection Committee in complete violation of the directions passed by this Hon’ble Court in CPIL case.”

The petitioners have alleged non-transparency in the appointment of the CVC and VC and have prayed for setting aside the appointments.

Earlier in 2004, a Writ Petition was filed by Centre for Integrity, Governance & Training in Vigilance Administration before the Supreme Court, seeking proper transparency and eligibility for the appointment of CVC and VCs.

Adjudicating on the petition, the Court, through an order dated 17.12.2014 directed the Union of India to proceed with the selection process but stayed the appointment of CVC and VCs without the leave of the Court.

However, it lifted the stay on May 13, 2015, in view of the urgency and importance of the appointments, after it was assured by the Attorney General that the Government would appoint the best person after following a credible and transparent selection process.

Read the Petition here.