Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7221 OF 2016
(Arising out of SLP (C) No.14406 of 2012)
Educ. Cons. (I) Ltd. SC/ST Empl. Wel. Asso. …… Appellant
Versus
Union of India & Others ……
Respondents
JUDGMENT
Uday Umesh Lalit
Leave granted.
This appeal is directed against the judgment and order dated 07.12.2011
passed by the High Court of Delhi dismissing Writ Petition (Civil) No.7577
of 2011, which had questioned and sought quashing of orders granting
extension of tenure to Respondent No.4 Ms. Anju Banerjee as Chairman-cum-
Managing Director, Educational Consultants India Limited, for a period of 5
years i.e., upto 28.11.2015.
3. Educational Consultants India Limited (Ed.CIL, for short) was
conceived and incorporated as a Public Sector Enterprise by the Government
of India in 1981 under the Ministry of Education and Culture (reconstituted
as the Ministry of Human Resource Development since then). The Ed.CIL
offers consultancy and technical services in different areas of Education
and Human Resource Development not only within the Country but also on
global basis. The Ed.CIL is category ‘C’ Central Public Sector
Undertaking. The procedure with regard to appointments to posts in
categories ‘C’ and ‘D’ of Public Sector Enterprises has been prescribed by
Office Memorandum dated 03.04.2001, whereby the Appointments Committee of
Cabinet has delegated its power in relation to appointments, to
Administrative Ministries/Departments Public Sector Undertakings.
According to the procedure prescribed, Public Enterprises Selection Board
(hereinafter referred to as PESB) a high powered body constituted by the
Government of India to advise the Government on appointments to top
managerial posts, is involved in the selection process. The policy of the
Government of India is to appoint outstanding professional Managers to
levels 1 and 2 posts and such other posts as the Government may decide from
time to time, through a fair and objective selection procedure.
4. Respondent No.4, who was then holding the post of Group General
Manager, HRD, Indian Railway Catering and Tourism Corporation, New Delhi
was appointed as Chairman-cum-Managing Director (‘CMD’ for short) of
Ed.CIL vide order dated 04.10.2005 for five years w.e.f. 30.11.2005 after
following due procedure. The tenure of five years of Respondent No.4 as
CMD of Ed.CIL was to expire on 29.11.2010 and the Ministry of Human
Resource and Development (‘HRD’ for short) took up the matter with PESB on
the proposal of extension to be granted to Respondent No.4. The proposal
was considered by PESB in its meeting held on 26.10.2010 and the
recommendations were then forwarded to the Ministry of HRD vide letter
dated 27.10.2010 as under:-
“PUBLIC ENTERPRISES SELECTION BOARD
(Ministry of Personnel Public Grievances & Pensions)
Sub: Extension of tenure or otherwise of Ms. Anju Banerjee, CMD,
Educational Consultants India Ltd. beyond 29.11.2010.
The Board considered the proposal of the Ministry of Human Resource
Development regarding extension of tenure or otherwise Ms. Anju Banerjee,
CMD, Educational Consultants India Ltd. beyond 29.11.2010 as contained in
letter No.F.20-19/2010/TS-VIII(Pt.) dated 14.9.2010, 24.09.2010 &
20.10.2010.
As per the procedure laid down by the PESB vide their O.M. No. 5/16/96-
PESB dated 21.11.1996, the case of extension/non-extension of tenure of
Board level appointees are required to be considered by the Board in the
light of his performance as reflected in the documents like the data based
performance report, the special performance report and the ACRs along with
the inputs given by the Secretary of the Administrative Ministry etc.
Against this background, the proposal of the Ministry of Human Resource
Development regarding extension of tenure or otherwise of Ms. Anju
Banerjee, CMD, Educational Consultants India Ltd. beyond 29.11.2010, was
considered by the Board in its meeting held on 6.10.2010 when Secretary,
HRD apprised the Board that no ACRs of the officer were available. The
Board decided to await for the ACRs before taking a decision. As per the
standard practice Ms. Anju Banerjee was also called to meet the Board.
The Board noted that on the recommendation of the PESB and with the
approval of the competent authority, Ms. Anju Banerjee was appointed as
CMD, Educational Consultants India Ltd. w.e.f. 30.11.2005 and she would
complete her five years on 29.11.2010. She will attain the age of
superannuation on 31.1.2017, her date of birth being 24.1.1957.
On receipt of ACRs the Board considered the proposal in its internal
meeting on 26.10.2010. Taking into account the totality of circumstances
including her performance as reflected in the documents forwarded by the
Administrative Deptt. like the data based performance report, the special
performance report, the available ACRs and the inputs given by the
Secretary, HRD the Board after consideration recommended extension of
tenure of Ms. Anju Banerjee, CMD, Educational Consultants India Ltd. beyond
29.11.2010 to 29.11.2015.
The ACR dossiers of Ms. Anju Banerjee (For the period from 1.4.09 to
31.10.09 and November 2009 to 31.3.2010) are enclosed for necessary action.
For expediting Vigilance Clearances a photo-copy of the pro-forma filled in
by the candidate is also enclosed for necessary action.
The case may kindly be processed further for obtaining the approval of the
competent authority for extension of tenure of Ms. Anju Banerjee, CMD,
Educational Consultants India Ltd. beyond 29.11.2010 upto 29.11.2015.
A copy of the order when issued may please be sent to us for information
of the Board.
(VEDANTAM GIRI)
DIRECTOR
(Ministry of Human Resource Development Ms. Vibha Puri Das. Secretary) New
Delhi
PESB U. O .No. 9/15/2010-PESB dated 27/10/2010”
5. The proforma for seeking Vigilance Clearance was enclosed along with
the aforesaid recommendation and the relevant papers were sent by PESB
directly to Central Vigilance Commission (‘CVC’ for short). CVC by its
letter dated 01.11.2010 requested the Ministry of HRD to provide complete
information in respect of Respondent No.4 in the prescribed format.
Accordingly, by letter dated 09.11.2010 the Government of India, Ministry
of HRD, Department of Higher Education forwarded complete details of
Respondent No.4 to CVC stating inter-alia that Respondent No.4 was clear
from Vigilance angle. It was stated in the letter that the tenure of
Respondent No.4 as CMD, Ed.CIL was due to expire on 29.11.2010 and as such
Vigilance Clearance may be communicated to the Ministry by 26.11.2010.
6. This was followed by letter dated 23.11.2010 in which the Government
of India, Ministry of HRD, Department of Higher Education requested CVC to
expedite the matter and forward the Clearance before 26.11.2010. As no
communication was received from CVC, the file was placed before the
Competent Authority which took following decisions:-
“(a) In the event of Vigilance Clearance from CVC not being available by
26.11.2010, the present CMD, Smt.Anju Banerjee may be allowed to continue
for a period of three months beyond 29.11.2010 for until further order,
whichever is earlier.
(b) If the Vigilance Clearance from CVC is received, extension for full
five years would be issued.”
7. Since no response was received from CVC, the Government of India,
Ministry of HRD, Department of Higher Education vide its order dated
29.11.2010 granted extension of tenure to Respondent No.4 as Chairman-cum-
Managing Director, Ed.CIL for an initial period of 3 months beyond
29.11.2010 or until further orders. On 02.12.2010 CVC wrote to the
Government of India, Ministry of HRD to the following effect:-
“Telegraphic Address
‘SATARKTA’, New Delhi
E-Mail Address
cewnvigil@nic.in
Website
www.cvc.nic.in CENTRAL VIGILANCE COMMISSION
EPABX
24651001-07
QSDI/Fax:2461286
Satarkta Bhavan G.P.O. Complex
Block A, INA, New Delhi-110023
005-VGC-151
La-/No…………………………..
Fnukad/Dated 2.12.2010
Shri Amit Khare,
Jt. Secy & CVO
Ministry of HRD,
D/o Higher Education
New Delhi.
Sub: Vigilance Clearance in respect of Ms. Anju Banerjee CMD, Educational
Consultants India Ltd.
Please refer to your letter No. F.C. 19011/2/2010-Vig. Dated 9.11.2010 on
the above subject.
As the Ministry of HRD is aware, there have been a series of complaints
against Ms. Banerjee in the recent past including repeated complaints made
under Whistleblower’s Act, from a Deputy Manager of EdCIL leveling, inter
alia, allegations of harassment, of irregularities in
promotions/appointments etc. the ministry is also aware that some of these
allegations have been found on investigation, to be prima facie true.
Further when the Commission took up the case of protection of the whistle
blower, Ms. Banerjee not only put pressure on the CVO but also got,
eventually the CVO’s post abolished, Attention of the Ministry is also
invited, in this connection, to the ex-CVO/EdCIL’S letter dated 05.02.2010,
Commission’s letters dated 11.02.2010, 05.04.2010 etc. as well (copies
enclosed).
The commission has, therefore, advised that the above facts may be placed
before the competent authority while it considers Ms. Banerjee’s case for
extension of tenure.
Yours faithfully
(P.M.Pillai)
Director
Telefax- 24651013
Encl: As above”
8. In reply, the Government of India vide letter dated 06.01.2011
clarified the issues raised in letter dated 02.12.2010. It stated that the
concerned Deputy Manager was charge-sheeted prior to his filing complaints
and that such complaint was not whistleblower’s complaint. The letter was
as under:-
“No. F.C. 19011/2/2010-VIG.
Government of India
Ministry of Human Resource Development
Department of Higher Education
Vigilance Wing
New Delhi, dated the 6th January, 2011
To,
Shri P.M. Pillai
Director
Central Vigilance Commission
Satarkta Bhawan, GPO Complex,
Block-A, INA,
New Delhi.
Sub: Vigilance Clearance in respect of Ms. Anju Banerjee, CMD, Educational
Consultants India Ltd.
Sir,
Please refer to your letter No. 005-VGC-151/110692 dated 02.12.2010 on the
subject mentioned above. While in pursuance of Commission’s advice, we
would be placing before the competent authority, the issue raised by the
Commission in the subject letter, I am desired to apprise the Commission of
the status of these issues.
In so far as the complaints made under the Whistleblowers Act by Deputy
Manager of Ed.CIL against Ms.Anju Banerjee are concerned, we had earlier
vide our letter dated 24.05.2010, apprised the Commission of the sequence
of events about the initiation of disciplinary proceeding against the said
Deputy Manager by Ed.CIL and his filing the PIDPI complaint with the
Commission. On the aforesaid reference from the Ministry, this issue was
examined by the Commission and the Commission had intimated vide their
letter No.006/EDN/057 (Pt.)/89868 dated 09.06.2010 that they had noted the
position brought out by the Ministry that the said Deputy Manager was
charge-sheeted prior to his filing the PIDPI complaint. In view of this,
obviously the complaint was not a whistleblower’s complaint.
As regards the abolition of the CVO’s post by Ed.CIL, the fact is that the
post was abolished by the Ed.CIL Board which decision, after due
consideration, was subsequently endorsed by the Ministry and the position
in this regard was also apprised to the Commission and to the Department of
Personnel & Training vide letter No.C-34014/1/2008-Vigilance dated
11th/15th March, 2010 and No.C-34014/1/2008-Vig dated 1st April, 2010
respectively.
Yours faithfully
(AMIT KHARE)
Joint Secretary & CVO”
The record indicates that in order to get factual position in respect of
allegations in the complaint referred to in the letter dated 02.12.2010
examined, the Education Secretary, Department of Higher Education, Ministry
of HRD, Government of India vide her Note dated 02.02.2011 commended that
the said matters be jointly examined by two senior most officers of the
Department. Accordingly all the allegations contained in the complaint
referred to in letter dated 02.12.2010 were looked into by a Committee of
two senior most officers of the Department namely Shri Ashok Kumar Thakur
and Shri Sunil Kumar on the basis of the concerned file. The Committee
submitted its report in the form of tabulated statement indicating the
allegations, response of Ed. CIL and conclusions reached by the Committee
with respect to those allegations. The Committee found no merit in any of
the allegations and concluded that no case was made out for denial of re-
appointment of Respondent No.4. The entire matter was then placed before
the Competent Authority who after considering all the issues approved
extension of tenure of Respondent No.4 for a period of five years.
Accordingly the Government of India, Ministry of HRD, Department of Higher
Education vide its letter dated 22.02.2011 granted extension to Respondent
No.4 for five years.
10. Thereafter Joint Secretary/CVO of the Government of India, Ministry
of HRD, Department of Higher Education vide letter dated 16.03.2011
forwarded report of the Committee to CVC and informed that the Committee
did not find any merit in the allegations leveled in the complaint referred
to in letter dated 02.12.2010 of CVC. He further stated that he agreed with
the recommendations of the Committee and was of the considered view that
the matter be closed and suggested that CVC may also consider closure of
the matter. Said letter dated 16.3.2011 was to the following effect:-
“No. C-13012/14/2010-Vigilance
Government of India
Ministry of Human Resource Development
Department of Higher Education
Vigilance Wing
R.No. 231, C Wing, Shashtri Bhawan,
New Delhi, dated 16th March, 2011
Subject:- Complaint against Smt. Anju Banerjee CMD Ed. CIL
Central Vigilance Commission may kindly refer to their OM
Nos.010/EDN/065/96501 dated 10.08.2010, 010/EDN/065/ 9741 dated 10.08.2010,
010/EDN/064/96104 dated 29.07.2010, 010/EDN/065/102883 dated
23.09.2010,010/EDN/065/116320 dated 17.01.2011 on the above mentioned
subject. These complaints were referred to a Committee consisting of Shri
Ashok Thakur, Special Secretary and Shri Sunil Kumar, Additional Secretary
in the Ministry. The Committee did not find any merit in any of the
allegations leveled in the complaints.
2. The Report has been accepted by the Central Govt. in the Ministry.
3. I fully agree with the recommendations of the Committee and am of the
considered view that this matter should now be closed. Central Vigilance
Commission may, therefore, consider closure of the same.
(Amit Khare)
JS CVO
Secretary,
Central Vigilance Commission
Satarkata Bhavan, GPO Complex
(Attention:Shri Prabhat Kumar, Director)
Block A, INA New Delhi-110023
Encl: As above”
11. In the meantime, the appellant had filed Writ Petition (Civil)
No.8032 of 2010 on 23.11.2010 in the High Court of Delhi praying inter alia
for quashing of the proposal to grant extension to Respondent No.4 as CMD,
Ed. CIL for a fresh term of five years. After the orders dated 29.11.2010
and 22.02.2011 granting extension to Respondent No.4 were issued, the High
Court permitted the appellant to withdraw said Writ Petition and file a
comprehensive Writ Petition incorporating the subsequent events.
Accordingly Writ Petition (Civil) No.7577 of 2011 was filed by the
appellant on 09.09.2011 seeking quashing of orders dated 29.11.2010 and
22.02.2011 whereby Respondent No.4 was granted extension of five years.
The High Court by its order dated 19.10.2011 issued Notice to CVC to
clarify whether specific clearance of CVC was required for extending the
term of Respondent No.4 for a period of five years as CMD Ed.CIL and
whether CVC had no further role to play in the matter after it had
addressed communication dated 02.12.2010.
12. In response, an affidavit in reply was filed on behalf of Ministry of
HRD, Department of Higher Education placing all the relevant
correspondence. The affidavit also placed on record, the report submitted
by the Committee of Mr. Ashok Thakur and Mr. Sunil Kumar dated 15.02.2011.
During the course of hearing of the matter, the learned Additional
Solicitor General also placed on record, letter dated 09.11.2011 sent by
CVC to the Ministry of HRD, informing that CVC had no role after issuance
of communication dated 02.12.2010 regarding Vigilance Clearance. Said
letter dated 09.11.2011 was as under:-
“MOST IMMEDIATE
COURT MATTER
No.010/LEGAL/083/153071
CENTRAL VIGILANCE COMMISSION
Satarkta Bhavan
GPO Complex. Block-A
INA, New Delhi 110 023
Dated the 9.11.2011
To,
Shri K.S. Mahajan
Under Secretary(Vig.)
Ministry of Human Resource Development
Shastri Bhawan
New Delhi 110 001
Sub: CWP No. 7577 of 2011 titled “Educational Consultants India Ltd. vs.
UOI & Ors.” Filed before the Hon’ble High Court of Delhi.
Sir,
Please refer to Ed.CIL’s letter No. Ed.CIL/Legal/51-2010-Hr. dated
24.10.2011 on the above subject. Copy of letter enclosed.
2. A perusal of the HC’s order dated 19.10.2011 reveals that the
Hon’ble Division Bench has sought the response of the Commission on the
following issues:
Whether specific clearance of CVC was required for extending the terms of
CMD, Ed.CIL for another five years.
Whether CVC has no further role to play in the matter after it had
addressed communication dated 02.12.2010 i.e. the Vigilance Clearance
granted by CVC.
3. It is stated on the basis of records that as regards point No.I, the
relevant circulars/instructions issued by DoPT (copy enclosed) may please
be referred. Regarding point No.ii, it is hereby informed that there is
no role of the Commission after issue of Commission’s communication dated
02.12.2010 regarding Vigilance Clearance. It is requested that effective
steps may please be taken to defend the interests of the Commission also
before the Hon’ble High Court.
Yours faithfully,
(R.N. Nayak)
OSD (Admn.)
Tel.: 24643592
Encl.: As above
Copy to: Shri N.S. Padmananbhan, Chief General Manager
(HR/Admn.), Ed.CIL(India) Ltd., 10-B, IP Estate, New Delhi 110 002.
(R.N. Nayak)
OSD (Admn.)”
13. The High Court by its order dated 07.12.2011 dismissed Writ Petition
(Civil) No.7577/2011 as it found no merit in the petition. It referred to
the communications dated 16.03.2011 and 09.11.2011 in its order. The
relevant portion of the order of the High Court is quoted hereunder:-
“5. In compliance of the order dated 19th October, 2011 (supra), an
affidavit has been filed enclosing inter alia letter dated 6th January,
2011 of the Ministry of Human Resource Development, Government of India to
the Respondent No.3 CVC informing that the complaint of the Deputy Manager
was motivated as a charge sheet had been issued to him prior to his
making the complaint; that he thus did not even stand in the position of a
whistle blower and that the abolition of the CVO’s post in Ed.CIL (India)
Ltd. was with the sanction of the Ministry. The affidavit also encloses
other documents to show that the decision to extend the term of the
Respondent No.4 as CMD was taken after due consideration of all the facts.
The affidavit also encloses the letter dated 16th March, 2011 of the
Ministry of Human Resource Development to the Respondent No.3 CVC closing
the complaints against the Respondent No.4.
6. The learned Additional Solicitor General has during the hearing
today also handed over a copy of the letter dated 9th November, 2011 of the
Respondent No.3 CVC to the Ministry informing that the Respondent No.3 CVC
had no role after issuance of the communication dated 2nd December, 2010
regarding Vigilance Clearance.
7. We are thus satisfied that there is no merit in the allegation in the
petition of the extension of the term of the Respondent No.4 being without
the CVC clearance. We are also satisfied that there is no other illegality
in the CVC clearance.”
14. In this appeal challenging the aforesaid decision of the High Court,
certain additional documents were placed on record which are replies
received to queries under the Right to Information Act. These additional
documents include communication dated 03.06.2011 from CVC to the effect
that a direct enquiry under Sections 8 and 11 of the Central Vigilance Act,
2003 relating to complaints in file No.010/EDM065 and 010/EDM/064 was
entrusted to Shri Amar Mudi. Subsequently, by way of I.A. No.6 two more
documents were placed on record including “Draft Inspection Report on
Contracts awarded by Ministry of HRD during 2007-08 to 2009-10 to Ed.CIL”
by CAG, Director General of Audit (Central Expenditure).
15. Along with affidavit in reply filed on behalf of Ministry of HRD, the
entire correspondence in the matter was placed on record. The affidavit
also referred to the proceedings initiated against the concerned Deputy
Secretary and stated that he was charge-sheeted vide memorandum dated
05.10.2007 and 19.08.2008 purely on administrative grounds for omissions
committed by him in the year 2003-2004 and 2005-2008, which was much before
the decision of CVC considering him as a whistleblower; the fact that he
was so charge-sheeted before he was given whistleblower status was noted by
CVC vide its letter dated 09.06.2010; the concerned Deputy Secretary had
filed a Writ Petition challenging said charge-sheets which was dismissed by
the High Court; thereafter disciplinary proceedings culminated in an order
of dismissal of that Deputy Secretary; and the entire sequence of events
was intimated to CVC who had remarked that since an appeal would lie before
Appellate Authority it had decided not to interfere in the matter.
16. We heard Mr. Prashant Bhushan, learned Advocate appearing in support
of the petition and Mr. Ranjit Kumar, learned Solicitor General for
Respondents No.1, 2 and 3. After hearing the counsel, the matter was
reserved for judgment and the learned Solicitor General was asked to file
additional affidavit on behalf of CVC indicating current position and the
format according to which clearances, if any, are either granted, denied or
deferred by CVC.
17. Accordingly, the Additional Secretary, CVC filed additional affidavit
referring to Office Memorandum dated 4.08.1988 and placing on record
Guidelines dated 29.10.2007 and 14.12.2007, Circular dated 12.07.1999,
Instructions dated 22.10.2014 and 30.10.2014, letter dated 02.12.2010 and
Formats of clearances of CVC. An additional affidavit was thereafter
filed by the appellant seeking to bring on record certain new facts and
alleging that the action against the whistleblower appeared to be mala fide
and arbitrary. It was submitted that though CVC had come up with format
and procedure for Vigilance Clearance vide its last affidavit, the earlier
PESB Rules and Guidelines for Vigilance Clearance were not adhered to.
18. Affidavit filed by the Additional Secretary, CVC makes following
assertions:
“….It is submitted that Vigilance Clearance as such is to be granted only
by the concerned Cadre authorities and therefore maintenance of career
profile and vigilance history of the officers falls within their domain.
The Commission considers the vigilance profile furnished by the cadre
authorities, duly signed by the CVO. The inputs are also obtained from CBI
and the concerned Branches in the Commission. Based on the said
information, the Commission offers its comments as to whether anything
adverse is available on its records against the officer under consideration
for empanelment/ selection…..…………
“…As far as the case of Ms.Anju Banerjee is concerned, the Commission had,
in view of the circumstances of the case, vide its Letter No.005-VGC-151
dated 2nd December 2010, furnished a self-contained note, bringing the
available inputs to the notice of the Ministry of Human Resource
Development. Letter No.005-VGC-151 dated 2nd December 2010 was sent on the
basis of the views of the Commission at that time, which were duly
communicated to the Ministry of Human Resource Development and advised that
the facts may be placed before the competent authority while it considers
her case for extension of tenure………”
19. This affidavit filed on behalf of CVC adverted to following
circulars/guidelines/instructions:-
(a) Office memorandum dated 4.08.1988 pertaining to scrutiny of
antecedents of persons recommended for Board level posts in Public Sector
Enterprises providing, inter alia:-
“It would be the primary responsibility of the Administrative
Ministry/Department concerned to ensure that the candidates, whose
appointment as Functional Director/CMDs in public sector enterprises is
recommended for being considered by the ACC, should be cleared from
vigilance angle and that the Ministry/Department concerned should bring
this fact specifically to the notice of the Minister-in-charge in respect
of those persons, who are already holding Board level positions and who
have been recommended for higher Board level positions, the Vigilance
Clearance may be ascertained, besides other sources, from the Central
Vigilance Commission.”
(b) CVC circular dated 12.07.1999 which had issued instructions, the
relevant part being:
“Vigilance Clearance should be obtained from the Commission in respect of
all candidates/officers recommended by the PESB for appointment to any
Board level position in PSEs, irrespective of their holding a board level
or below board level post at that point of time.”
(c) Guidelines dated 29.10.2007 issued by Ministry of Personnel and
Public Grievances & Pensions (Department of Personnel and Training)
pertaining to “Vigilance Clearance” to All India Service Officers, the
relevant part being:-
“While considering cases for grant of Vigilance Clearance for the purpose
of empanelment of AIS officers of a particular batch, the Vigilance
Clearance/status will continue to be ascertained from the respective State
Government in respect of officers serving in connection with the affairs of
the Central Government, the vigilance status/clearance will be obtained
from the respective Ministry. In all cases, the comments of the CVC will
also be obtained.”
(d) Guidelines dated 14.12.2007 issued by Ministry of Personnel and
Public Grievances & Pensions (Department of Personnel and Training)
pertaining to grant of Vigilance Clearance to members of Central Civil
Services/Central Civil Posts providing, inter alia:-
“While considering cases for grant of Vigilance Clearance for the purpose
of empanelment of members of the Central Civil Services/Central Civil posts
of a particular batch, the Vigilance Clearance/status will continue to be
ascertained from the respective Cadre Authority In all such cases, the
comments of the Central Vigilance Commission will be obtained.”
20. The affidavit further sets out that presently following three options
are being exercised by CVC while conveying its inputs on the vigilance
status of the concerned officer:
“(A) In respect of cases where there is no adverse input available in the
data base of the Commission, feedback of CBI and vigilance profile
furnished by the concerned Department, it is conveyed that there is nothing
adverse on the records of the Commission. (emphasis added)
(B) In respect of cases where there is any adverse input from CBI (viz.,
prosecution launched against the officer, regular case under investigation,
etc.,)
Or
Vigilance profile furnished by the Department indicates any
disciplinary proceeding in progress or currency of penalty imposed is still
in force
Or
Data base of the Commission indicates any advice tendered by the Commission
for initiation of disciplinary proceedings against the officer is pending,
denial of clearance is conveyed by the Commission. (emphasis added)
(C) In respect of cases where there are complaints/cases pending at the
end of the concerned Department, (i.e., where the officer is not clear from
vigilance angle as per records of the Department), the Commission advises
that the complaints/cases pending at the end of the Department may be taken
to their logical conclusion and thereafter the Commission may be approached
for Vigilance Clearance with updated vigilance profile of the officer. The
Department is therefore intimated that clearance in respect of the officer
cannot be considered by the Commission at this stage;” (emphasis added)
21. Guidelines dated 29.10.2007 and 14.12.2007, Office Memorandum dated
04.08.1988 and CVC Circular dated 12.07.1999 were in existence and
applicable when the case for grant of extension to Respondent No.4 came up
for consideration. The record indicates that the letter dated 2.12.2010 of
CVC made two points namely that there were complaints against Respondent
No.4 from a Deputy Manager and that Respondent No.4 not only put pressure
on the CVO but also got the post of CVO abolished. This letter then
advised that those facts be placed before the Competent Authority while
considering the case of Respondent No.4 for extension of tenure. The
immediate response by letter dated 06.01.2011 was that the concerned Deputy
Manager was charge-sheeted prior to his filing the complaint against
Respondent No.4 and that the complaint was not a whistleblower’s
complaint. It was further stated that the post of CVO was abolished by
the Ed. CIL Board which decision was subsequently endorsed by the Ministry
and the position in that regard was communicated to CVC. In any case, the
allegations contained in the complaint of the concerned Deputy Manager were
looked into by a Committee of the two senior-most Officers of the
Department which submitted its report and conclusions in respect of each of
the allegations in the complaint. The Committee found no merit in any of
the allegations. The entire matter was thereafter placed before the
Competent Authority who after considering all the issues approved extension
of tenure of Respondent No.4 for a period of five years. The record is
clear that at the initial stage when the response from CVC was awaited,
an extension was granted only for three months and when the letter from
CVC was received, the matter was not only clarified immediately but the
allegations in the complaint referred to in the letter of CVC were also
looked into by the Committee. The stand of CVC as evident from its letter
dated 09.11.2011 is that after having brought the relevant facets of the
matter to the notice of the Competent Authority vide letter dated
02.12.2010, CVC had no further role in the matter. The record further
shows that right from 06.01.2011 every development was communicated to CVC.
We, therefore, find nothing wrong in the decision making process in the
present matter nor do we find any infraction in securing and acting in
terms of the comments of CVC. We, therefore, reject the challenge to the
orders granting extension to Respondent No.4.
22. Affirming the view taken by the High Court, we dismiss this appeal.
No order as to costs.
….………………………..CJI
(T.S. Thakur)
..……………………………J.
(R. Banumathi)
...……………………………J.
(Uday Umesh Lalit)
New Delhi,
August 02, 2016.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7221 OF 2016
(Arising out of SLP (C) No.14406 of 2012)
Educ. Cons. (I) Ltd. SC/ST Empl. Wel. Asso. …… Appellant
Versus
Union of India & Others ……
Respondents
JUDGMENT
Uday Umesh Lalit
Leave granted.
This appeal is directed against the judgment and order dated 07.12.2011
passed by the High Court of Delhi dismissing Writ Petition (Civil) No.7577
of 2011, which had questioned and sought quashing of orders granting
extension of tenure to Respondent No.4 Ms. Anju Banerjee as Chairman-cum-
Managing Director, Educational Consultants India Limited, for a period of 5
years i.e., upto 28.11.2015.
3. Educational Consultants India Limited (Ed.CIL, for short) was
conceived and incorporated as a Public Sector Enterprise by the Government
of India in 1981 under the Ministry of Education and Culture (reconstituted
as the Ministry of Human Resource Development since then). The Ed.CIL
offers consultancy and technical services in different areas of Education
and Human Resource Development not only within the Country but also on
global basis. The Ed.CIL is category ‘C’ Central Public Sector
Undertaking. The procedure with regard to appointments to posts in
categories ‘C’ and ‘D’ of Public Sector Enterprises has been prescribed by
Office Memorandum dated 03.04.2001, whereby the Appointments Committee of
Cabinet has delegated its power in relation to appointments, to
Administrative Ministries/Departments Public Sector Undertakings.
According to the procedure prescribed, Public Enterprises Selection Board
(hereinafter referred to as PESB) a high powered body constituted by the
Government of India to advise the Government on appointments to top
managerial posts, is involved in the selection process. The policy of the
Government of India is to appoint outstanding professional Managers to
levels 1 and 2 posts and such other posts as the Government may decide from
time to time, through a fair and objective selection procedure.
4. Respondent No.4, who was then holding the post of Group General
Manager, HRD, Indian Railway Catering and Tourism Corporation, New Delhi
was appointed as Chairman-cum-Managing Director (‘CMD’ for short) of
Ed.CIL vide order dated 04.10.2005 for five years w.e.f. 30.11.2005 after
following due procedure. The tenure of five years of Respondent No.4 as
CMD of Ed.CIL was to expire on 29.11.2010 and the Ministry of Human
Resource and Development (‘HRD’ for short) took up the matter with PESB on
the proposal of extension to be granted to Respondent No.4. The proposal
was considered by PESB in its meeting held on 26.10.2010 and the
recommendations were then forwarded to the Ministry of HRD vide letter
dated 27.10.2010 as under:-
“PUBLIC ENTERPRISES SELECTION BOARD
(Ministry of Personnel Public Grievances & Pensions)
Sub: Extension of tenure or otherwise of Ms. Anju Banerjee, CMD,
Educational Consultants India Ltd. beyond 29.11.2010.
The Board considered the proposal of the Ministry of Human Resource
Development regarding extension of tenure or otherwise Ms. Anju Banerjee,
CMD, Educational Consultants India Ltd. beyond 29.11.2010 as contained in
letter No.F.20-19/2010/TS-VIII(Pt.) dated 14.9.2010, 24.09.2010 &
20.10.2010.
As per the procedure laid down by the PESB vide their O.M. No. 5/16/96-
PESB dated 21.11.1996, the case of extension/non-extension of tenure of
Board level appointees are required to be considered by the Board in the
light of his performance as reflected in the documents like the data based
performance report, the special performance report and the ACRs along with
the inputs given by the Secretary of the Administrative Ministry etc.
Against this background, the proposal of the Ministry of Human Resource
Development regarding extension of tenure or otherwise of Ms. Anju
Banerjee, CMD, Educational Consultants India Ltd. beyond 29.11.2010, was
considered by the Board in its meeting held on 6.10.2010 when Secretary,
HRD apprised the Board that no ACRs of the officer were available. The
Board decided to await for the ACRs before taking a decision. As per the
standard practice Ms. Anju Banerjee was also called to meet the Board.
The Board noted that on the recommendation of the PESB and with the
approval of the competent authority, Ms. Anju Banerjee was appointed as
CMD, Educational Consultants India Ltd. w.e.f. 30.11.2005 and she would
complete her five years on 29.11.2010. She will attain the age of
superannuation on 31.1.2017, her date of birth being 24.1.1957.
On receipt of ACRs the Board considered the proposal in its internal
meeting on 26.10.2010. Taking into account the totality of circumstances
including her performance as reflected in the documents forwarded by the
Administrative Deptt. like the data based performance report, the special
performance report, the available ACRs and the inputs given by the
Secretary, HRD the Board after consideration recommended extension of
tenure of Ms. Anju Banerjee, CMD, Educational Consultants India Ltd. beyond
29.11.2010 to 29.11.2015.
The ACR dossiers of Ms. Anju Banerjee (For the period from 1.4.09 to
31.10.09 and November 2009 to 31.3.2010) are enclosed for necessary action.
For expediting Vigilance Clearances a photo-copy of the pro-forma filled in
by the candidate is also enclosed for necessary action.
The case may kindly be processed further for obtaining the approval of the
competent authority for extension of tenure of Ms. Anju Banerjee, CMD,
Educational Consultants India Ltd. beyond 29.11.2010 upto 29.11.2015.
A copy of the order when issued may please be sent to us for information
of the Board.
(VEDANTAM GIRI)
DIRECTOR
(Ministry of Human Resource Development Ms. Vibha Puri Das. Secretary) New
Delhi
PESB U. O .No. 9/15/2010-PESB dated 27/10/2010”
5. The proforma for seeking Vigilance Clearance was enclosed along with
the aforesaid recommendation and the relevant papers were sent by PESB
directly to Central Vigilance Commission (‘CVC’ for short). CVC by its
letter dated 01.11.2010 requested the Ministry of HRD to provide complete
information in respect of Respondent No.4 in the prescribed format.
Accordingly, by letter dated 09.11.2010 the Government of India, Ministry
of HRD, Department of Higher Education forwarded complete details of
Respondent No.4 to CVC stating inter-alia that Respondent No.4 was clear
from Vigilance angle. It was stated in the letter that the tenure of
Respondent No.4 as CMD, Ed.CIL was due to expire on 29.11.2010 and as such
Vigilance Clearance may be communicated to the Ministry by 26.11.2010.
6. This was followed by letter dated 23.11.2010 in which the Government
of India, Ministry of HRD, Department of Higher Education requested CVC to
expedite the matter and forward the Clearance before 26.11.2010. As no
communication was received from CVC, the file was placed before the
Competent Authority which took following decisions:-
“(a) In the event of Vigilance Clearance from CVC not being available by
26.11.2010, the present CMD, Smt.Anju Banerjee may be allowed to continue
for a period of three months beyond 29.11.2010 for until further order,
whichever is earlier.
(b) If the Vigilance Clearance from CVC is received, extension for full
five years would be issued.”
7. Since no response was received from CVC, the Government of India,
Ministry of HRD, Department of Higher Education vide its order dated
29.11.2010 granted extension of tenure to Respondent No.4 as Chairman-cum-
Managing Director, Ed.CIL for an initial period of 3 months beyond
29.11.2010 or until further orders. On 02.12.2010 CVC wrote to the
Government of India, Ministry of HRD to the following effect:-
“Telegraphic Address
‘SATARKTA’, New Delhi
E-Mail Address
cewnvigil@nic.in
Website
www.cvc.nic.in CENTRAL VIGILANCE COMMISSION
EPABX
24651001-07
QSDI/Fax:2461286
Satarkta Bhavan G.P.O. Complex
Block A, INA, New Delhi-110023
005-VGC-151
La-/No…………………………..
Fnukad/Dated 2.12.2010
Shri Amit Khare,
Jt. Secy & CVO
Ministry of HRD,
D/o Higher Education
New Delhi.
Sub: Vigilance Clearance in respect of Ms. Anju Banerjee CMD, Educational
Consultants India Ltd.
Please refer to your letter No. F.C. 19011/2/2010-Vig. Dated 9.11.2010 on
the above subject.
As the Ministry of HRD is aware, there have been a series of complaints
against Ms. Banerjee in the recent past including repeated complaints made
under Whistleblower’s Act, from a Deputy Manager of EdCIL leveling, inter
alia, allegations of harassment, of irregularities in
promotions/appointments etc. the ministry is also aware that some of these
allegations have been found on investigation, to be prima facie true.
Further when the Commission took up the case of protection of the whistle
blower, Ms. Banerjee not only put pressure on the CVO but also got,
eventually the CVO’s post abolished, Attention of the Ministry is also
invited, in this connection, to the ex-CVO/EdCIL’S letter dated 05.02.2010,
Commission’s letters dated 11.02.2010, 05.04.2010 etc. as well (copies
enclosed).
The commission has, therefore, advised that the above facts may be placed
before the competent authority while it considers Ms. Banerjee’s case for
extension of tenure.
Yours faithfully
(P.M.Pillai)
Director
Telefax- 24651013
Encl: As above”
8. In reply, the Government of India vide letter dated 06.01.2011
clarified the issues raised in letter dated 02.12.2010. It stated that the
concerned Deputy Manager was charge-sheeted prior to his filing complaints
and that such complaint was not whistleblower’s complaint. The letter was
as under:-
“No. F.C. 19011/2/2010-VIG.
Government of India
Ministry of Human Resource Development
Department of Higher Education
Vigilance Wing
New Delhi, dated the 6th January, 2011
To,
Shri P.M. Pillai
Director
Central Vigilance Commission
Satarkta Bhawan, GPO Complex,
Block-A, INA,
New Delhi.
Sub: Vigilance Clearance in respect of Ms. Anju Banerjee, CMD, Educational
Consultants India Ltd.
Sir,
Please refer to your letter No. 005-VGC-151/110692 dated 02.12.2010 on the
subject mentioned above. While in pursuance of Commission’s advice, we
would be placing before the competent authority, the issue raised by the
Commission in the subject letter, I am desired to apprise the Commission of
the status of these issues.
In so far as the complaints made under the Whistleblowers Act by Deputy
Manager of Ed.CIL against Ms.Anju Banerjee are concerned, we had earlier
vide our letter dated 24.05.2010, apprised the Commission of the sequence
of events about the initiation of disciplinary proceeding against the said
Deputy Manager by Ed.CIL and his filing the PIDPI complaint with the
Commission. On the aforesaid reference from the Ministry, this issue was
examined by the Commission and the Commission had intimated vide their
letter No.006/EDN/057 (Pt.)/89868 dated 09.06.2010 that they had noted the
position brought out by the Ministry that the said Deputy Manager was
charge-sheeted prior to his filing the PIDPI complaint. In view of this,
obviously the complaint was not a whistleblower’s complaint.
As regards the abolition of the CVO’s post by Ed.CIL, the fact is that the
post was abolished by the Ed.CIL Board which decision, after due
consideration, was subsequently endorsed by the Ministry and the position
in this regard was also apprised to the Commission and to the Department of
Personnel & Training vide letter No.C-34014/1/2008-Vigilance dated
11th/15th March, 2010 and No.C-34014/1/2008-Vig dated 1st April, 2010
respectively.
Yours faithfully
(AMIT KHARE)
Joint Secretary & CVO”
The record indicates that in order to get factual position in respect of
allegations in the complaint referred to in the letter dated 02.12.2010
examined, the Education Secretary, Department of Higher Education, Ministry
of HRD, Government of India vide her Note dated 02.02.2011 commended that
the said matters be jointly examined by two senior most officers of the
Department. Accordingly all the allegations contained in the complaint
referred to in letter dated 02.12.2010 were looked into by a Committee of
two senior most officers of the Department namely Shri Ashok Kumar Thakur
and Shri Sunil Kumar on the basis of the concerned file. The Committee
submitted its report in the form of tabulated statement indicating the
allegations, response of Ed. CIL and conclusions reached by the Committee
with respect to those allegations. The Committee found no merit in any of
the allegations and concluded that no case was made out for denial of re-
appointment of Respondent No.4. The entire matter was then placed before
the Competent Authority who after considering all the issues approved
extension of tenure of Respondent No.4 for a period of five years.
Accordingly the Government of India, Ministry of HRD, Department of Higher
Education vide its letter dated 22.02.2011 granted extension to Respondent
No.4 for five years.
10. Thereafter Joint Secretary/CVO of the Government of India, Ministry
of HRD, Department of Higher Education vide letter dated 16.03.2011
forwarded report of the Committee to CVC and informed that the Committee
did not find any merit in the allegations leveled in the complaint referred
to in letter dated 02.12.2010 of CVC. He further stated that he agreed with
the recommendations of the Committee and was of the considered view that
the matter be closed and suggested that CVC may also consider closure of
the matter. Said letter dated 16.3.2011 was to the following effect:-
“No. C-13012/14/2010-Vigilance
Government of India
Ministry of Human Resource Development
Department of Higher Education
Vigilance Wing
R.No. 231, C Wing, Shashtri Bhawan,
New Delhi, dated 16th March, 2011
Subject:- Complaint against Smt. Anju Banerjee CMD Ed. CIL
Central Vigilance Commission may kindly refer to their OM
Nos.010/EDN/065/96501 dated 10.08.2010, 010/EDN/065/ 9741 dated 10.08.2010,
010/EDN/064/96104 dated 29.07.2010, 010/EDN/065/102883 dated
23.09.2010,010/EDN/065/116320 dated 17.01.2011 on the above mentioned
subject. These complaints were referred to a Committee consisting of Shri
Ashok Thakur, Special Secretary and Shri Sunil Kumar, Additional Secretary
in the Ministry. The Committee did not find any merit in any of the
allegations leveled in the complaints.
2. The Report has been accepted by the Central Govt. in the Ministry.
3. I fully agree with the recommendations of the Committee and am of the
considered view that this matter should now be closed. Central Vigilance
Commission may, therefore, consider closure of the same.
(Amit Khare)
JS CVO
Secretary,
Central Vigilance Commission
Satarkata Bhavan, GPO Complex
(Attention:Shri Prabhat Kumar, Director)
Block A, INA New Delhi-110023
Encl: As above”
11. In the meantime, the appellant had filed Writ Petition (Civil)
No.8032 of 2010 on 23.11.2010 in the High Court of Delhi praying inter alia
for quashing of the proposal to grant extension to Respondent No.4 as CMD,
Ed. CIL for a fresh term of five years. After the orders dated 29.11.2010
and 22.02.2011 granting extension to Respondent No.4 were issued, the High
Court permitted the appellant to withdraw said Writ Petition and file a
comprehensive Writ Petition incorporating the subsequent events.
Accordingly Writ Petition (Civil) No.7577 of 2011 was filed by the
appellant on 09.09.2011 seeking quashing of orders dated 29.11.2010 and
22.02.2011 whereby Respondent No.4 was granted extension of five years.
The High Court by its order dated 19.10.2011 issued Notice to CVC to
clarify whether specific clearance of CVC was required for extending the
term of Respondent No.4 for a period of five years as CMD Ed.CIL and
whether CVC had no further role to play in the matter after it had
addressed communication dated 02.12.2010.
12. In response, an affidavit in reply was filed on behalf of Ministry of
HRD, Department of Higher Education placing all the relevant
correspondence. The affidavit also placed on record, the report submitted
by the Committee of Mr. Ashok Thakur and Mr. Sunil Kumar dated 15.02.2011.
During the course of hearing of the matter, the learned Additional
Solicitor General also placed on record, letter dated 09.11.2011 sent by
CVC to the Ministry of HRD, informing that CVC had no role after issuance
of communication dated 02.12.2010 regarding Vigilance Clearance. Said
letter dated 09.11.2011 was as under:-
“MOST IMMEDIATE
COURT MATTER
No.010/LEGAL/083/153071
CENTRAL VIGILANCE COMMISSION
Satarkta Bhavan
GPO Complex. Block-A
INA, New Delhi 110 023
Dated the 9.11.2011
To,
Shri K.S. Mahajan
Under Secretary(Vig.)
Ministry of Human Resource Development
Shastri Bhawan
New Delhi 110 001
Sub: CWP No. 7577 of 2011 titled “Educational Consultants India Ltd. vs.
UOI & Ors.” Filed before the Hon’ble High Court of Delhi.
Sir,
Please refer to Ed.CIL’s letter No. Ed.CIL/Legal/51-2010-Hr. dated
24.10.2011 on the above subject. Copy of letter enclosed.
2. A perusal of the HC’s order dated 19.10.2011 reveals that the
Hon’ble Division Bench has sought the response of the Commission on the
following issues:
Whether specific clearance of CVC was required for extending the terms of
CMD, Ed.CIL for another five years.
Whether CVC has no further role to play in the matter after it had
addressed communication dated 02.12.2010 i.e. the Vigilance Clearance
granted by CVC.
3. It is stated on the basis of records that as regards point No.I, the
relevant circulars/instructions issued by DoPT (copy enclosed) may please
be referred. Regarding point No.ii, it is hereby informed that there is
no role of the Commission after issue of Commission’s communication dated
02.12.2010 regarding Vigilance Clearance. It is requested that effective
steps may please be taken to defend the interests of the Commission also
before the Hon’ble High Court.
Yours faithfully,
(R.N. Nayak)
OSD (Admn.)
Tel.: 24643592
Encl.: As above
Copy to: Shri N.S. Padmananbhan, Chief General Manager
(HR/Admn.), Ed.CIL(India) Ltd., 10-B, IP Estate, New Delhi 110 002.
(R.N. Nayak)
OSD (Admn.)”
13. The High Court by its order dated 07.12.2011 dismissed Writ Petition
(Civil) No.7577/2011 as it found no merit in the petition. It referred to
the communications dated 16.03.2011 and 09.11.2011 in its order. The
relevant portion of the order of the High Court is quoted hereunder:-
“5. In compliance of the order dated 19th October, 2011 (supra), an
affidavit has been filed enclosing inter alia letter dated 6th January,
2011 of the Ministry of Human Resource Development, Government of India to
the Respondent No.3 CVC informing that the complaint of the Deputy Manager
was motivated as a charge sheet had been issued to him prior to his
making the complaint; that he thus did not even stand in the position of a
whistle blower and that the abolition of the CVO’s post in Ed.CIL (India)
Ltd. was with the sanction of the Ministry. The affidavit also encloses
other documents to show that the decision to extend the term of the
Respondent No.4 as CMD was taken after due consideration of all the facts.
The affidavit also encloses the letter dated 16th March, 2011 of the
Ministry of Human Resource Development to the Respondent No.3 CVC closing
the complaints against the Respondent No.4.
6. The learned Additional Solicitor General has during the hearing
today also handed over a copy of the letter dated 9th November, 2011 of the
Respondent No.3 CVC to the Ministry informing that the Respondent No.3 CVC
had no role after issuance of the communication dated 2nd December, 2010
regarding Vigilance Clearance.
7. We are thus satisfied that there is no merit in the allegation in the
petition of the extension of the term of the Respondent No.4 being without
the CVC clearance. We are also satisfied that there is no other illegality
in the CVC clearance.”
14. In this appeal challenging the aforesaid decision of the High Court,
certain additional documents were placed on record which are replies
received to queries under the Right to Information Act. These additional
documents include communication dated 03.06.2011 from CVC to the effect
that a direct enquiry under Sections 8 and 11 of the Central Vigilance Act,
2003 relating to complaints in file No.010/EDM065 and 010/EDM/064 was
entrusted to Shri Amar Mudi. Subsequently, by way of I.A. No.6 two more
documents were placed on record including “Draft Inspection Report on
Contracts awarded by Ministry of HRD during 2007-08 to 2009-10 to Ed.CIL”
by CAG, Director General of Audit (Central Expenditure).
15. Along with affidavit in reply filed on behalf of Ministry of HRD, the
entire correspondence in the matter was placed on record. The affidavit
also referred to the proceedings initiated against the concerned Deputy
Secretary and stated that he was charge-sheeted vide memorandum dated
05.10.2007 and 19.08.2008 purely on administrative grounds for omissions
committed by him in the year 2003-2004 and 2005-2008, which was much before
the decision of CVC considering him as a whistleblower; the fact that he
was so charge-sheeted before he was given whistleblower status was noted by
CVC vide its letter dated 09.06.2010; the concerned Deputy Secretary had
filed a Writ Petition challenging said charge-sheets which was dismissed by
the High Court; thereafter disciplinary proceedings culminated in an order
of dismissal of that Deputy Secretary; and the entire sequence of events
was intimated to CVC who had remarked that since an appeal would lie before
Appellate Authority it had decided not to interfere in the matter.
16. We heard Mr. Prashant Bhushan, learned Advocate appearing in support
of the petition and Mr. Ranjit Kumar, learned Solicitor General for
Respondents No.1, 2 and 3. After hearing the counsel, the matter was
reserved for judgment and the learned Solicitor General was asked to file
additional affidavit on behalf of CVC indicating current position and the
format according to which clearances, if any, are either granted, denied or
deferred by CVC.
17. Accordingly, the Additional Secretary, CVC filed additional affidavit
referring to Office Memorandum dated 4.08.1988 and placing on record
Guidelines dated 29.10.2007 and 14.12.2007, Circular dated 12.07.1999,
Instructions dated 22.10.2014 and 30.10.2014, letter dated 02.12.2010 and
Formats of clearances of CVC. An additional affidavit was thereafter
filed by the appellant seeking to bring on record certain new facts and
alleging that the action against the whistleblower appeared to be mala fide
and arbitrary. It was submitted that though CVC had come up with format
and procedure for Vigilance Clearance vide its last affidavit, the earlier
PESB Rules and Guidelines for Vigilance Clearance were not adhered to.
18. Affidavit filed by the Additional Secretary, CVC makes following
assertions:
“….It is submitted that Vigilance Clearance as such is to be granted only
by the concerned Cadre authorities and therefore maintenance of career
profile and vigilance history of the officers falls within their domain.
The Commission considers the vigilance profile furnished by the cadre
authorities, duly signed by the CVO. The inputs are also obtained from CBI
and the concerned Branches in the Commission. Based on the said
information, the Commission offers its comments as to whether anything
adverse is available on its records against the officer under consideration
for empanelment/ selection…..…………
“…As far as the case of Ms.Anju Banerjee is concerned, the Commission had,
in view of the circumstances of the case, vide its Letter No.005-VGC-151
dated 2nd December 2010, furnished a self-contained note, bringing the
available inputs to the notice of the Ministry of Human Resource
Development. Letter No.005-VGC-151 dated 2nd December 2010 was sent on the
basis of the views of the Commission at that time, which were duly
communicated to the Ministry of Human Resource Development and advised that
the facts may be placed before the competent authority while it considers
her case for extension of tenure………”
19. This affidavit filed on behalf of CVC adverted to following
circulars/guidelines/instructions:-
(a) Office memorandum dated 4.08.1988 pertaining to scrutiny of
antecedents of persons recommended for Board level posts in Public Sector
Enterprises providing, inter alia:-
“It would be the primary responsibility of the Administrative
Ministry/Department concerned to ensure that the candidates, whose
appointment as Functional Director/CMDs in public sector enterprises is
recommended for being considered by the ACC, should be cleared from
vigilance angle and that the Ministry/Department concerned should bring
this fact specifically to the notice of the Minister-in-charge in respect
of those persons, who are already holding Board level positions and who
have been recommended for higher Board level positions, the Vigilance
Clearance may be ascertained, besides other sources, from the Central
Vigilance Commission.”
(b) CVC circular dated 12.07.1999 which had issued instructions, the
relevant part being:
“Vigilance Clearance should be obtained from the Commission in respect of
all candidates/officers recommended by the PESB for appointment to any
Board level position in PSEs, irrespective of their holding a board level
or below board level post at that point of time.”
(c) Guidelines dated 29.10.2007 issued by Ministry of Personnel and
Public Grievances & Pensions (Department of Personnel and Training)
pertaining to “Vigilance Clearance” to All India Service Officers, the
relevant part being:-
“While considering cases for grant of Vigilance Clearance for the purpose
of empanelment of AIS officers of a particular batch, the Vigilance
Clearance/status will continue to be ascertained from the respective State
Government in respect of officers serving in connection with the affairs of
the Central Government, the vigilance status/clearance will be obtained
from the respective Ministry. In all cases, the comments of the CVC will
also be obtained.”
(d) Guidelines dated 14.12.2007 issued by Ministry of Personnel and
Public Grievances & Pensions (Department of Personnel and Training)
pertaining to grant of Vigilance Clearance to members of Central Civil
Services/Central Civil Posts providing, inter alia:-
“While considering cases for grant of Vigilance Clearance for the purpose
of empanelment of members of the Central Civil Services/Central Civil posts
of a particular batch, the Vigilance Clearance/status will continue to be
ascertained from the respective Cadre Authority In all such cases, the
comments of the Central Vigilance Commission will be obtained.”
20. The affidavit further sets out that presently following three options
are being exercised by CVC while conveying its inputs on the vigilance
status of the concerned officer:
“(A) In respect of cases where there is no adverse input available in the
data base of the Commission, feedback of CBI and vigilance profile
furnished by the concerned Department, it is conveyed that there is nothing
adverse on the records of the Commission. (emphasis added)
(B) In respect of cases where there is any adverse input from CBI (viz.,
prosecution launched against the officer, regular case under investigation,
etc.,)
Or
Vigilance profile furnished by the Department indicates any
disciplinary proceeding in progress or currency of penalty imposed is still
in force
Or
Data base of the Commission indicates any advice tendered by the Commission
for initiation of disciplinary proceedings against the officer is pending,
denial of clearance is conveyed by the Commission. (emphasis added)
(C) In respect of cases where there are complaints/cases pending at the
end of the concerned Department, (i.e., where the officer is not clear from
vigilance angle as per records of the Department), the Commission advises
that the complaints/cases pending at the end of the Department may be taken
to their logical conclusion and thereafter the Commission may be approached
for Vigilance Clearance with updated vigilance profile of the officer. The
Department is therefore intimated that clearance in respect of the officer
cannot be considered by the Commission at this stage;” (emphasis added)
21. Guidelines dated 29.10.2007 and 14.12.2007, Office Memorandum dated
04.08.1988 and CVC Circular dated 12.07.1999 were in existence and
applicable when the case for grant of extension to Respondent No.4 came up
for consideration. The record indicates that the letter dated 2.12.2010 of
CVC made two points namely that there were complaints against Respondent
No.4 from a Deputy Manager and that Respondent No.4 not only put pressure
on the CVO but also got the post of CVO abolished. This letter then
advised that those facts be placed before the Competent Authority while
considering the case of Respondent No.4 for extension of tenure. The
immediate response by letter dated 06.01.2011 was that the concerned Deputy
Manager was charge-sheeted prior to his filing the complaint against
Respondent No.4 and that the complaint was not a whistleblower’s
complaint. It was further stated that the post of CVO was abolished by
the Ed. CIL Board which decision was subsequently endorsed by the Ministry
and the position in that regard was communicated to CVC. In any case, the
allegations contained in the complaint of the concerned Deputy Manager were
looked into by a Committee of the two senior-most Officers of the
Department which submitted its report and conclusions in respect of each of
the allegations in the complaint. The Committee found no merit in any of
the allegations. The entire matter was thereafter placed before the
Competent Authority who after considering all the issues approved extension
of tenure of Respondent No.4 for a period of five years. The record is
clear that at the initial stage when the response from CVC was awaited,
an extension was granted only for three months and when the letter from
CVC was received, the matter was not only clarified immediately but the
allegations in the complaint referred to in the letter of CVC were also
looked into by the Committee. The stand of CVC as evident from its letter
dated 09.11.2011 is that after having brought the relevant facets of the
matter to the notice of the Competent Authority vide letter dated
02.12.2010, CVC had no further role in the matter. The record further
shows that right from 06.01.2011 every development was communicated to CVC.
We, therefore, find nothing wrong in the decision making process in the
present matter nor do we find any infraction in securing and acting in
terms of the comments of CVC. We, therefore, reject the challenge to the
orders granting extension to Respondent No.4.
22. Affirming the view taken by the High Court, we dismiss this appeal.
No order as to costs.
….………………………..CJI
(T.S. Thakur)
..……………………………J.
(R. Banumathi)
...……………………………J.
(Uday Umesh Lalit)
New Delhi,
August 02, 2016.
