Central Administrative Tribunal - Delhi
Tilak Raj Gandhi vs Union Of India on 12 October, 2011
Central Administrative Tribunal Principal Bench OA No.2164/2011 New Delhi, this the 12th day of October, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Tilak Raj Gandhi s/o Sh. Ram Dutta Mal R/o B-1/639/4, Ground Floor, Janakpuri, New Delhi 110058. Applicant (By Advocate : Mr. Nidhesh Gupta, Sr. Advocate with Mr. Rajesh Baweja and Mr. Piyush Sharma) Versus 1. Union of India Through Cabinet Secretary Rashtrapati Bhawan, New Delhi. 2. Department of Personnel & Training Through Establishment Officer & Secretary to ACC North Block, New Delhi. 3. Department of Telecommunication Through Secretary, Telecom, Sanchar Bhawan, 20, Ashoka Road, New Delhi. Respondents (By Advocate : Mr. D. S. Mahendru with Mr. Gurpreet Parwana) : ORDER : Dr. Ramesh Chandra Panda, Member (A):
Shri Tilak Raj Gandhi, applicant herein, working as General Manager (GM) in Mahanagar Telephone Nigam Limited (MTNL) is aggrieved by the order dated 18.02.2010 (Annexure-A1) whereby the Appointment Committee of the Cabinet (ACC) has not approved the proposal of Department of Telecommunication (DOT) for appointment of the applicant as Director (Finance) in Bharat Sanchar Nigam Limited (BSNL) and has approached the Tribunal in the instant OA impugning the said order dated 18.02.2010 with the prayer to issue appropriate direction to the respondents to appoint him as the Director (Finance) BSNL.
2. At the admission stage of the present OA, when the case came up on 3.06.2011, while issuing notice to the respondents, following interim directions were passed:-
Issue notice to the respondents returnable on 07.07.2011.
Applicant had earlier filed writ petition for the same relief before Honble High Court of Delhi. When the matter came up for hearing before the Honble Single Judge on 25.08.2010 it was ordered that the interview may be conducted as per the schedule fixed. However, no final appointment to the post of Director (Finance) was to be made by respondent no.3.. This stay was continued till such time the High Court vide orders dated 24.05.2011 required the applicant to first exhaust his remedy of filing Original Appli1cation before this Tribunal. It is in these circumstances that present Original application for the same reliefs, as were asked for in the writ petition, has been filed.
Considering the facts of the case and the stay, which is continuing all though, we issue the same interim directions as were issued by Honble High Court on 25.08.2010.
Process DASTI.
3. We may refer to the factual matrix of the case that led the applicant to file the present OA. The post of Director (Finance) in BSNL was due to fall vacant on 01.01.2009. As per the prescribed procedure, the Public Enterprises Selection Board (PESB) issued an advertisement in January, 2008 seeking qualified candidates meeting the eligibility criteria to apply. After scrutiny of all the applications, the applicant meeting the eligibility conditions was included by PESB in the list of 28 candidates short listed for interview. PESB informed MTNL to advise the applicant to appear for interview on 12.08.2008. But, the interview did not take place. The PESB notified for the 2nd time the vacancy for filling up the post of Director (Finance), BSNL with exactly the same eligibility criteria. After scrutiny of the applications, the applicant and Smt. Anita Soni of MTNL were short listed along with other candidates and were called for interview. The applicant pleads that Smt. Anita Soni was not short listed earlier for the interview scheduled in August 2008 as she did not meet the Educational Qualification criteria. In the meantime, MTNL issued Promotion Order dated 5.5.2009 to the applicant elevating him to the post of General Manager (GM). The PESB in its meeting held on 9th and 10th February, 2009, recommended the names of Smt. Anita Soni, Director (Finance), MTNL and applicant, working as (Budget, Banking Finance), MTNL, for consideration to the post of Director (Finance), Bharat Sanchar Nigam Limited (BSNL), in schedule B scale of Pay of `25,750-650-30,950/- (pre-revised) for a period of five years from the date of assumption of charge of the post, or till the date of superannuation, whichever would be earlier. As per the merit and preference Smt. Anita Soni was at the Sl.No.1 and applicant was placed at the 2nd position in the said panel. It is the case of the applicant that CVC accorded Vigilance clearance to the applicant for consideration of his candidature as Director (Finance), BSNL. The DOT sought the approval of the ACC for appointment of the applicant placed at S. No.2 in the PESB panel, as Director (Finance), BSNL, as the DOT informed the ACC in its proposal that in respect of Smt. Anita Soni (Placed at Sl. No.1 in the panel), the DOT and PESB received some representations from Telecom Watchdog (a society registered under Societies Registration Act, 1860) alleging about the fudging of her education qualification. The DOT in consultation with the Department of Higher Education in the matter of Smt. Anita Sonis education qualification concluded that she having PG Diploma in Business Administration being not equivalent to MBA, was ineligible for the post of Director (Finance), BSNL, MBA being essential and a mandatory educational qualification for the post, her name was not recommended. In respect of the applicant who was at Sl. No.2 of the PESB panel, it was found that his name figured at Sl. No.3 of the list of 6 officers of MTNL (which included the name of Shri R. S. P. Sinha, ex-CMD, MTNL) against whom CBI had sought permission to investigate under DSPE Act, 1946. However, the DOT denied permission for the same. Therefore, CBI filed closure report, but the Special Judge, CBI, in the order dated 14.10.2009, did not accept the closure report in view of the evidence referred to in the order and directed the CBI to investigate the matter with a view to find out if there was any conspiracy to bribe high ranking public servants including the applicant and to destroy evidence of violation of Official Secrets Act. It is noticed that when the proposal was initially submitted to the ACC, the Cabinet Secretary had suggested that applicants case should be treated at par with that of Shri R. S. P. Sinhas and that the CBI may be directed to complete the investigation at the earliest, and the DOT was directed to obtain fresh vigilance clearance from CVC in respect of the applicant. However, subsequently, the ACC rejected the proposal to give extension to Shri R. S. P. Sinha keeping in mind further investigation being conducted by the CBI on the directions of the Special Judge, CBI; CVCs observations and the fact that the public interest should be the main criteria in appointments/extension to any posts. In view of these facts, the ACC, did not approve the appointment of the applicant as Director (Finance), BSNL and directed DOT to initiate fresh selection to fill up the said vacancy. In the meantime, an advertisement dated 19.03.2010 was issued for the 3rd time to fill up the vacancy. However, the DOT resubmitted the proposal for appointment of the applicant as Director (Finance), BSNL, for reconsideration of the ACC, wherein enclosed was a copy of the applicants representation dated 2.3.2010 addressed to the Minister of Communications & Information Technology and stating that points made in the representation were quite relevant and deserved to be considered. On consideration of the same, the Cabinet Secretary in his note dated 24.04.2010 observed that the ACC has considered the matter in detail and taken a clear decision not to appoint Sri Gandhi as Director (Finance) in view of the CBI case against him, there was no justification to merit reconsideration of this position and suggested to direct to pursue the matter with PESB for early selection. When the subject of applicants appointment to the post was further resubmitted by the DOT to reconsider the applicants case, the Cabinet Secretary in his note dated 13.05.2010 submitted to the ACC not to approve DOT proposal. Home Minister agreeing with the views of the Cabinet Secretary wondered how the two proposals of DOT could be reconciled the 1st being the 3rd advertisement published calling for the application and second being the proposal to reconsider the applicants case for appointment to the said post. Prime Minister, while not approving the DOT proposal, directed DOT to fill up the said vacant post for which the advertisement had already been issued. In the meantime, the applicant submitted one more representation to DOT on 2.06.2010. He moved a Writ Petition before Delhi High Court where it was ordered on 4.06.2010 directing the DOP&T to consider and dispose of the representation within four weeks. In this background, Secretary, ACC submitted a note on 16.07.2010, which on consideration by the Cabinet Secretary on 22.07.2010 recommended to the ACC to reject the representation as the investigation by the CBI against the applicant was still continuing. The said suggestion was approved by the Prime Minister. It was the case of the applicant that the ACC note was not routed through the Home Minister while rejecting the applicants representation. It is further the case of the applicant that the CBI filed another report before the Special Judge, CBI, Patiala House Courts, New Delhi on 29.09.2010, wherein, it has been stated that there was no dishonest or fraudulent intention or violation of Board directive by the MTNL Officers in releasing the payment of Phase-II and Phase-III of the CDMA Project funds including `7.18 crore to M/s Motorola Limited on 24/2.09.2003 and the name of the officials were earlier mentioned in view of suspicion only. In the background of the above facts, the applicant has approached this Tribunal on 02.6.2011 in the instant OA.
4. Shri Nidhesh Gupta, learned Senior Advocate alongwith Shri Rajesh Baweja and Shri Piyush Sharma highlighting the background of the case raised many contentions in support of the reliefs claimed by the applicant. (i) One of the limbs of Shri Guptas arguments is that Central Vigilance Commission (CVC) being the supervisory authority of CBI and having given vigilance clearance in case of the applicant, before his name was considered by PESB, involvement of the applicant in a criminal case would not be relevant and it should not stand as an impediment for approval of his selection by the ACC to the post of Director (Finance) in BSNL. Relying upon the judgment of Honble Supreme Court in Dr. A. K. Doshi versus Union of India reported in 2001 (4) SCC 43, he submitted that the law laid by Honble Supreme Court is that the recommendations of the Selection Committee must be placed before the ACC without any further addition or alteration, whereas in the present case the Cabinet Secretary submitted the information about the pendency of the CBI enquiry, which vitiated the entire selection process. The said information was detriment to the applicants interest. His contention is that sending such information would be against the law laid by Honble Supreme court in Dr. A. K. Doshis case (supra). (ii) The next contention of the learned counsel relates to the irregularity in the decision making process. The ACC being the authority competent to decide the applicants appointment as well as his representation, it is urged that no discussion took place amongst the ACC Members. Shri Gupta for this contention placed reliance on the judgment of High Court of Delhi in the case of Waris Rasid Kidwai versus Union of India and Others [ILR 1998 (2) Del 589] to submit that ACC should not act arbitrarily and should have meaningful and effective discussions between the ACC Members before arriving at a decision. He submits that there is no discussion among ACC members while considering applicants representation dated 02.03.2010 and even the proposals submitted by the 3rd respondent to ACC. So much so, Shri Nidhesh Gupta states that as per the information received by the applicant the first respondent who is not a Member of the ACC submitted a wrong and factually incorrect note indicating old CBI inquiry of September, 2003 and has been instrumental in getting the proposal to appoint him to the said proposal mooted by 3rd respondent rejected. Even the 1st respondent by calling for irrelevant information kept on delaying when his appointment proposal was initially submitted by the second respondent. (iii) It was further contended that the CVC accorded Vigilance Clearance in favour of applicant on 31.03.2009 for consideration of his candidature for the post of Director (Finance) BSNL. Besides on 31.01.2009, CVC gave Vigilance clearance of applicant for consideration of his candidature for the post of Director (Finance and Financial Operations) in Power Finance Corporation where also his name was put on the select panel along with an internal candidate. Shri Gupta would contend that as per DOP&T OM dated 30.07.2009, Vigilance clearance by CVC would suffice for extending offer of appointment to the applicant. Shri Nidhesh Gupta highlights that MTNL issued a promotion order on 5.5.2009 to the applicant elevating him to the higher grade in the same post of General Manager. Shri Nidhesh Gupta highlighted the impeccable service record of the applicant who was given important assignments right from the date of his joining in 1986. The applicant was made General Manager (Budget) w.e.f. 22.05.2002 against a newly created post in Corporate Office of MTNL and was given the additional charges of Banking Section of Corporate Office which is responsible for transfer of lump sum weekly amounts to Nodal units of Delhi and Mumbai for meeting their various revenue and capital payments. These transfers are normaly made on weekly basis against the valid fund requisition made by General Manager (Finance) of the respective unit i.e. Delhi and Mumbai, who thereafter transfer the funds to paying authorities for releasing/making various payments. The applicant is in no way responsible in releasing payment to any contractor/party which is the job of paying authorities under the control of General Manager (Finance) of respective Units. (iv) He very elaborately narrated the process of vigilance clearance to bring home the argument that the applicant received vigilance clearance from CVO MTNL and CVC, but it was CVO, DOT and 1st respondent brought extraneous matters before the ACC while processing the proposal for his appointment as Director (Finance) BSNL. The applicant being under the administrative control of Chairman and Managing Director, MTNL, for vigilance matters, his vigilance authority is Chief Vigilance Officer, MTNL. CVO, DOT is not authorized to send any report about the applicant to any authority as only CVO, MTNL and CMD, MTNL are authorized officers. In September, 2009, the Vigilance Wing of MTNL forwarded a report to the DOT, clearly highlighting that Banking Section of MTNL under the charge of applicant was in no way involved in releasing the payments to Contractors and CVO, MTNL also gave a clearance in favour of applicant on 13/11/09 for applying for a Director (Finance) post in MMTC, a Government company clearly certifying that there is no vigilance/disciplinary case pending/continuing against the applicant. (v) In another case of A. P. Aggarwal versus Government of NCT of Delhi and Another, 2000 (1) SCC 600 in para 16 and 17, the Honble Supreme Court held that every state action in order to survive must not be suspectable to the vice of arbitrariness. Shri Gupta would submit that proposal for appointment of applicant was again strongly recommended by third respondent with approval of Minister Incharge (a member of ACC) and was sent to second respondent, who is Secretary, ACC. He submitted the ACC Note with recommendations to other 2 members of ACC through first respondent. It is alleged that the first respondent with malafide intention made incorrect noting in the file and got this proposal also rejected without considering representation dated 2.06.2010 of the applicant in which he has requested that full and complete facts should be submitted before ACC including Status Report of CBI dated 29.04.2010 for decision for the appointment of applicant. Aggrieved by such action of respondents applicant filed a Writ Petition before Honble High Court. Vide order dated 4.06.2010, High Court directed the second respondent to consider the representation of the applicant dated 2.06.2010 and decide the same within four weeks. The respondents sought repeated extensions to comply with the High Court order dated 4.06.2010. The CVO, MTNL who is the vigilance authority of the applicant was not consulted at all and CVO, DOT quite mischievously stated that CBI inquiry was going on against applicant. The integrity of applicant has been as Beyond doubt in his ACRs. Vide letter dated 27.07.2010, the second respondent informed that his representation had been rejected by the competent authority. It is further stated that the matter was not even put up before the competent authority i.e. ACC but was rejected from Prime Minister. (vi) The learned counsel for applicant submits that the applicant is in no way concerned with the said CBI case in which it has been the consistent stand of Government and CBI that nothing wrong has been done by him and inquiry has been going on against some private persons which has also been closed in April, 2010. It is submitted that CBI has repeatedly stated that no wrong doing has been done. Therefore, he contends that no investigation was pending or continuing against the applicant at present. In this background, Shri Gupta submits that CBI has reported that insofar as the officials of the MTNL are concerned there has been no nexus for which even approval has not been given by the competent authority. The learned Judge of CBI Court directed further investigation qua private persons. Even concerning them, the investigating agency gave closure report and also a status report before the Honble Delhi High Court. He, therefore, labouriously contended that wrong facts were submitted before the ACC for getting the proposal of the first respondent duly approved by Minister concerned rejected. He urges that decision of ACC dated 18.02.2010 rejecting the proposal of the first respondent was based on wrong facts. Decision of ACC dated 4.06.2010 rejecting the proposal for reconsideration submitted by third respondent duly approved by DOT Minister and was also based on wrong facts. (vii) Referring to the short affidavit dated 28.07.2011 filed by the respondents stating that permission had been given to CBI on 27.12.2010 for further investigation. Applicant in the rejoinder dated 1.08.2011 has given detailed reasons that such a permission is not in accordance with law and in view of above facts appears to be malafide as CBI has repeatedly stated that nothing wrong has been done by MTNL Officials. In support he submits that during arguments, respondents produced letter dated 2.08.2011 from CBI in which it is mentioned that twice CBI had filed closure report in the Court of learned Special Judge, Patiala House, New Delhi. When the second closure report was pending consideration before the Court, the DOT vide letter dated 04.01.2011 has conveyed the grant of approval u/s 6A of DSPE Act for conducting investigation. His contention is that after the investigation has been done, it is only the competent Court which can order further investigation and in support of the contention he places his reliance on the judgment of Madras High Court in the case of V. Lakshmi versus the Government of Tamilnadu decided on 4.02.2001. He, therefore, contends that the CBI has filed a closure report even qua the private persons, and urges that the so called grant of approval at this stage is ex-facie illegal and contrary to the stand taken by the respondents and the CBI from time to time. (viii) Shri Nidhesh Gupta further contends that there is discriminatory approach by the respondents between the applicant and Shri RSP Sinha. He compared the applicants case with that of Shri Sinha to buttress his argument. It is stated that in the case of appointment of Mr. RSP Sinha as CMD MTNL for a period of five years with effect from 10.08.2004 up to 9.08.2009 the attitude of the respondent has been glaringly different. It is a pleaded case of the applicant that his role as General Manager (Banking & Budget) has been to transfer lump sum payment to the Delhi and Mumbai Units and he is not involved in releasing payment to the Contractors. It had been stated by the applicant in his representation to the CVO MTNL that he had no role regarding release of funds in the second and third phase of the project as Banking Section was not concerned about the payment. In this regard, the applicant has also annexed copy of the requisition received from General Manger (Finance) MTNL seeking transfer of the funds mentioned therein. He, therefore, submits that a perusal of the above uncontroverted facts makes it clear that the applicant dealing with transferring of the funds sought by the concerned authority, the applicant has not been involved in manner as alleged in the criminal case. In spite of the said facts, Shri RSP Sinha was approved by the ACC for appointment as CMD MTNL for a period of 5 years with effect from 10.08.2004 but in spite of various closure and status reports clearly exonerating the applicant, the stand now sought to be taken is discriminatory compared to the stand taken in so far as Shri RSP Sinha was concerned. Shri Gupta referred to the judgment of Honble Supreme Court in the case of Union of India versus K. V. Jankiraman [1991 (4) SCC 109] to submit that although the said matter is a promotion case, the Honble Supreme Court has held that it is only when a charge memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee, that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. It is submitted that the said settled principle of law is applicable both in the case of direct recruitment and also in the case of promotion. Since no charge sheet has been filed against the applicant in the criminal case, the impugned action deserves to be set aside and relief as sought for by the applicant in the OA deserves to be granted. Concluding his argument the learned counsel for the applicant submits that grave prejudice has been caused to the applicant in the sense that he has not been appointed to the post of Director (Finance) BSNL even though he is entitled to be appointed 2 = years ago and urges that the applicants OA should be allowed and he should be granted appointment for a minimum period of five years from the date of appointment even though the applicant completes 60 years of age as on 31.12.2014.
5. Controverting the contentions raised by the learned Senior Counsel for the Applicant, Shri D. S. Mahendru would contend that the case of the applicant has been considered number of time by the ACC and each time the inputs received from the vigilance angle has stood against the applicants selection. With regard to the contention that the Department of Telecommunication has recommended applicants appointment to the post of Director (Finance) in BSNL as recommended by PESB has also been looked into by the Appointment Committee of the Cabinet. The ACC has found that applicants involvement in the criminal case registered against him under Prevention of Corruption Act by CBI where the investigation is going on in the matter, is rather a complicated case involving many private persons and public servants. Therefore, CBI has been taking reasonable time to finalise the investigation in criminal case. Referring to the denial of sanction of prosecution by the DOT, counsel for the respondents would submit that the latest position is far different. He submits that permission has been granted under Section 6 A for investigating against the applicant along with other public servants. The CBI has been authorized to undertake the same. It is also contended that no malafide intention or alleged bias could be attributed to the Cabinet Secretary who as Secretary to the Cabinet has discharged his function and briefed the Members of the ACC in his notes properly. Refuting the allegations levelled against the Cabinet Secretary, the 1st respondent he submits that the allegation of malafide, arbitrariness and discrimination are far from true. The applicant is put to strict proof of such allegations. No malafide could be alleged against the first respondent. With regard to the case of RSP Sinha who has been appointed by the ACC as CMD, MTNL Shri Mahendru would contend that Shri Sinhas case was considered by the ACC in 2004 when only the preliminary investigation in the criminal case was being undertaken by CBI. However, he hastened to add that when the extension of Shri Sinha came up before the ACC, the said proposal for extension was not acceded to. Therefore, he opposes the negative equality being advanced by the learned counsel for the applicant in favour of the applicant. There is no discriminatory approach by the respondents in this regard. The ACC had been taking appropriate decision on the basis of the available information. Each case is being decided independent of the other. RSP Sinhas case and the case of the applicant at the respective period of time are not fit to be equated. With regard to the contention that the applicants representation has not been properly examined by the ACC, as the views of Home Minister has not been taken, Shri Mahendru would submit that it was not necessary that the representation need to be considered by the entire ACC. He would submit that the details on the representations submitted by the first respondent to the Prime Minister was properly considered by the Prime Minister and necessary orders were passed rejecting the same. In view of the above submissions, Shri Mahendru would submit that this was a fit case for dismissal of the OA.
6. During the hearing, Shri Anil Kumar, Secretary, Telecom Watchdog, New Delhi desired to assist the Tribunal in the proper consideration of the issues. With the consent of the counsels for the parties and in the interest of justice, we not only heard him but also permitted him to submit a note on the issues. He did submit a brief note on 11.08.2011 with enclosures which we took on record. Referring to the FIR in the criminal case, he stated that MTNL made a payment of `7.18 crore to Motorola supposedly by providing illegal gratification to officials of MTNL through Shri Gupta. Since at that time the names of MTNL officials were not confirmed, the CBI registered a case against some unknown officers of MTNL and six private persons, as accused. In the meantime, the PESB recommended the name of Shri RSP Sinha, who at that time was Director (Finance) of MTNL, for his appointment as CMD of MTNL. The then Prime Minister did not confirm Shri Sinhas appointment but ordered the CBI to expedite the investigation. DOT sought an interim response from the CBI at that time only a few months had passed since the CBI registered the FIR and the investigation was at a very preliminary stage. In its interim response the CBI on 8.05.2004 indicated The involvement of Shri RSP Sinha has not so far been noticed in RC 54(A)/2003-DLI. The matter is still under investigation. On the basis of this response, the ACC in July 2004 approved Shri Sinhas appointment as CMD, MTNL. It is further stated that in the meantime, the CBI continued its investigation and found prima facie evidence against the nine officers of MTNL including Shri RSP Snha and the applicant, who were added as accused and applicants name appeared as accused No.9. CBI sought DOT for granting permission against the serving accused officers including the applicant under Section 6 (A) of Delhi Special Police Establishment Act, 1946, for offences committed under the Prevention of Corruption Act. This letter indicates alleged charges against every individual including the applicant against whom the CBI had elaborated charges in seven pages. Thereafter, the CBIs charges were examined by the DOTs vigilance wing and having found prima facie cases against them, on 16.12.2008 recommended grant of permission to the CBI. But DOT denied permission to the CBI against all officers including the applicant. In the meantime, extension of Shri RSP Sinha was due and DOT moved a proposal for the same. It is stated that due to the intervention of the Telecom Watchdog in a Public Interest Litigation before Honble High Court of Delhi in CWP No.9338/2009, and orders of High Court on 03.12.2009, the ACC did not grant extension to Shri RSP Sinha as CMD, MTNL. The High Court of Delhi took note of the same in its order dated 22.02.2010 in following terms:-
Learned counsel for the Petitioner says that Respondent No.5 has not been granted an extension by the Appointments Committee of the Cabinet. This is confirmed by learned counsel for Respondents No.1 and 3. In fact, he has shown to us the order dated 14th January, 2010 to this effect. This order is taken on record. We find that the closure report submitted by the Central Bureau of Investigation has not been accepted by the Special Judge. It was further stated that the DOT moved the applicants case to the ACC for his appointment as Director (Finance) BSNL and the ACC rejected the proposal. In the meantime, Telecom Watchdog prayed High Court of Delhi to grant permission to the CBI for further investigation into the case and the Delhi High Court passed order on 20.04.2010, which is reproduced below:-
We find from the official file, a photocopy of which has been filed along with the writ petition, that there does not seem to be any application of mind to the entire facts of the case inasmuch as in the note dated 14.01.2009 specific information was called for from the CBI but even though that information was not given, a decision was taken on 18th March, 2009 to deny permission to the CBI to investigate the five officers mentioned above. Before denying permission to the CBI, it would have been appropriate for the Ministry to have obtained the specific information sught for and then taken a decision. This has not been done as is evident from the photocopy of the official file placed before us.
Learned counsel for the CBI says that he specific material which the Secretary of the concerned Ministry had required as well as the additional material will be supplied to the Central Government within four weeks and thereafter, we would expect the Central Government to take a decision on the question of granting or refusing approval to the CBI to investigate the role of the three officers, that is, Shri T. R. Gandhi, Shri Prabhash Singh and Shri R. K. Sharma within a period of six weeks thereafter.
7. Having heard the contentions of the rival parties, with the assistance of the counsel for the parties, we very carefully went through the pleadings. Counsel for the respondents submitted the relevant file in which the decision on the proposals relating to the applicants case for appointment was considered and rejected by the ACC. We have carefully scrutinized the said file. The controversy is very focused one, which revolves around-whether the applicant not being appointed as Director (Finance) in BSNL is legally sustainable or not?
8. Before we dwell on the controversies raised in the OA, it would be appropriate to preface the well settled proposition in law that in the matters of selection/ appointment in the Government or its Agencies/Authorities/Boards, the role of the Tribunal is rather limited. The selection and appointment at different levels of the government come within the functional domain of the executive. The Tribunal can only interfere to the limited extent if the decision and decision making process suffer from arbitrariness or discrimination.
9. The counsel for the applicant placed his reliance on the Apex Court judgement in A. K. Doshi's case (supra) to argue that decision making process has been vitiated. We may refer the same here. While considering the selection of Members of the Company Law Board the Apex Court made the following observation:-
"After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation along with the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime and the material is relevant for the purpose of appointment, then, the matter should be placed before the Appointments Committee with the additional material for its consideration. Such a course in our view, will be in accordance with the scheme of the Rules and the purpose of making appointment to the important public office. We are constrained to observe that the notings made by the Secretary of the Appointments Committee in the file, as noted earlier, was an attempt to interfere with the process of selection, which was neither permissible under the Rules nor desirable otherwise. By indulging in such unhealthy process the sanctity of the selection by the Selection Committee was attempted to be set at naught. Such conduct on the part of a senior and experienced Government officer does not commend us. It must be ensured that in future such a practice is not repeated . "
In the instant case the facts indicate that, the PESB made recommendations, which were processed by the second respondent and the first respondent gave the input of applicant's involvement in a criminal case being investigated by the CBI. On the basis of such an input the proposal for appointment of the applicant to the post of Director (Finance) BSNL was rejected by the ACC. It is noted that the Cabinet Secretary being at the significant position in the decision making process, is duty bound to bring in the information available on the relevant matters in his custody. He exactly did that. In our considered view, no procedural deviation was done in the case. On the contrary, non-supply of such input when the proposal passes through him would have been construed as suppression of facts.Therefore we donot accept the contention raised by the counsel for the applicant.
10. Learned Counsel for the applicant has placed his reliance on many judgments. In case of K. V. S. Janakiraman (supra), he highlighted the conditions on the basis of which promotion can be prevented and has submitted that in case of the applicant the said conditions did not exist as the applicant was not under suspension nor he was facing any departmental or criminal charges. Our close study of K. V. S. Janakiramans case (supra) would disclose that the law laid by Honble Apex court would apply in the matters of promotion. The present case being a direct selection for appointment to the post of Director (Finance) BSNL, the judgment of Honble Supreme Court in K.V.S. Janakiramans case (supra) is clearly distinguishable. He has also placed reliance on the judgment of Madras High Court in V. Lakshmis case (supra) and other cases to bring home the point that the state action should be free from arbitrariness and discrimination. We find that though the law laid in those judgments are generally applicable, we have very carefully considered the present case to find out whether there has been any discrimination or arbitrariness. We find that the decision making process is flawless. On the issue of discrimination comparing the case of Shri RSP Sinha with that of applicant, we find that the status of the criminal case investigation by the CBI at two distinct points of time has been different. In the year 2004 status was at the nascent stage whereas the CBI investigation in the same case in 2009-2010 would have been at the advance stage. RSP Sinhas proposal was considered and approved by the ACC in 2004 but in case of the applicant, information available with the CBI was in the year 2009/2010. Even the Trial Court did not allow the CBI to close the case, and permitted them to continue the investigation. As such, we find that the case of RSP Sinha and the applicant are in different footing and are not comparable. Therefore, the claim of negative equality advanced and the discrimination meted out against the applicant would not be tenable in the present case.
11. The learned Counsel for the applicant drew our attention to the report dated 25.05.2009 of the Investigating Officer forwarded by the Superintendent of Police CBI/ACP/New Delhi wherein it was clearly indicated that no evidence had come to light showing malafide and criminal intention of MTNL Officers in releasing the payments for Phase-II and III including `7.18 crore and it also inter alia provided that there was no evidence connecting the recovery of `50 lacs on 25.09.2003 which was allegedly meant to be used as illegal gratification to influence the public servants i.e. MTNL Officers to release the said amount. However, the CBI felt it necessary to examine them and to conduct investigation to ascertain their role but the competent authority denied the approval for such investigation against six officers of the MTNL. In the background of this contention, we also perused the order passed by learned Special Judge, CBI in his order dated 14.10.2009 on the above said Closure Report No.12/09 filed by CBI in RC 54(A)/03/CBI/ACB, New Delhi in the case of CBI versus Rajeev Kumar Gupta & others. While directing to further investigate, the closure report filed by CBI was not accepted and the pertinent part of the judgment is extracted below:-
(6) Competent Authority has refused permission to investigate against six senior officers of MTNL on the ground that no extra payment was made to M/s Motorola. The closure report has been filed by the CBI mainly and broadly stating that there was no mala fide and criminal intention of MTNL officers in releasing the payment for phase-II and III including Rs.7.8 crores on 24 and 25 September, 2003. However, this does not prevent others from entering into conspiracy to bribe the MTNL officers. Conspiracy is an independent offence. The question whether private individuals entered into conspiracy to bribe public servants has not been investigated thoroughly by taking the plea that no extra payment was made. Even if no extra payment has been made even then individuals, either singly or in combination with public servants, can enter into conspiracy to bribe the public servants.
(7) Statements of Rajiv Kumar Gupta and others recorded by the Income Tax authorities have not been placed on record.
36. These points need to be investigated with a view to find out if there was nay conspiracy to bribe the high ranking public servants and to destroy evidence of violation of Official Secrets Act. In view of the evidence referred to above and the points discussed, the closure report is not fit to be accepted. IO is directed to investigate the manner further in the light of above observations. Documents and statements be returned to the IO for purpose of further investigation. It is stated that there are notes submitted by the CBI to the learned Special Judge and the Honble High Court but as it stood on the date of final hearing, we were informed that the criminal case against MTNL Officers had not been closed. Be that as it may, the applicant remains under cloud of the above criminal case. We also find that the information given on more than one occasion by the Cabinet Secretary to ACC on the applicants involvement in the said criminal case has been correct and he has not misled the ACC as alleged by the applicant.
12. Further, it is noticed that the criminal case involving the applicant filed by the CBI in a regular case has been pending. It is also noticed that the Department of Telecommunication has already granted permission to the CBI on 27.12.2010 to further investigate the matter against the public servants including the applicant. It is appropriate to mention here that earlier though the CBI submitted Closure Report, the Special Judge of the CBI Court did not accept the same. Fervent contentions of the applicants counsel that despite the Closure Reports submitted by the CBI supported by the DOT, the ACC did not take note of the same and great injustice has been done to the applicant by not appointing him to the post of Director (Finance) BSNL. On the contrary, the present position is that permission has been granted to the CBI to further investigate against the applicant. The Special Judge of the CBI Court has not accepted the Closure Report of the CBI. In these admitted position, the contentions that the ACC should take into account earlier CBI Closure Reports and to consider the applicant for the post would not be legally tenable.
13. We also examined the issues of discrimination raised by the counsel for the applicant in the sense that though Shri RSP Sinha, the then Director (Finance) of MTNL has been involved in the criminal case in which applicant is involved was selected for the post of CMD, MTNL but the applicants case though similarly circumstanced was rejected by the ACC. The facts of the case would reveal that when Shri Sinha was selected and appointed by the ACC only a preliminary enquiry was pending and detailed investigation by the CBI had not taken place. Therefore, the nature of involvement to Shri Sinha was not known to the competent authorities while taking decision. The ACC did not approve the extension of Shri Sinha but took note after 5 years of his tenure and rejected the proposal for his extension. Therefore, the status of criminal case in the year 2004 and same in the years of 2009-2010 being different the applicants case when came up for consideration to the post of Director (Finance) BSNL, the Investigation Report of the CBI had disclosed such facts on the alleged misconduct / offences which were taken into account by the competent authority while denying the applicants appointment to the post of Director (Finance) BSNL. The circumstances being dissimilar and different though the criminal case is same in which both of them are involved, the negative equality drawn by the applicants counsel would not be admissible to grant any relief to the applicant.
14. Another issue which was taken up is with regard to the competency of the CVO of the DOT who has furnished information against the applicant. It is found that CVO DOT has only furnished the information on the involvement of the applicant in the criminal case and has not given anything beyond the facts which were available with the DOT. Therefore, the allegation against him on this count is not acceptable.
15. With regard to the applicants representation, it is noted that the Cabinet Secretary has provided appropriate information on the criminal case and on his recommendation the Prime Minister rejected his representation. His ground is that representation has not been considered by the ACC which has prejudiced the case of the applicant has been considered by us. We find that the Appointment Committee of the Cabinet is to look into the selection and appointment in case of Director (Finance) BSNL and in that context, the ACC has taken decision. Though there is a minor procedural infraction whereby the Home Minister who is a Member of the ACC has not seen the proposal to reject the representation of the applicant but such hyper technical matters cannot be the basis to consider granting any relief to the applicant, more so, when the applicants case has been considered at the highest level by the Prime Minister and the request for reconsideration has been rejected.
16. It is not our function to see to what extent the applicant is involved in the criminal case being investigated by the CBI but the fact remains that the criminal case is pending against him. The post of Director BSNL being a selection post through PESB, though the PESB recommended his name in the second selection process, it is well within the competence and power of the Appointments Committee of the Cabinet the highest decision making authority in such matters to the Government to examine the details of the applicants involvement in the criminal case and found that his involvement in the case would be stand against him. ACC has very rightly rejected the applicants selection as Director (Finance) BSNL and the representation to reconsider the proposal.
17. It must be noted that the Appointment Committee of the Cabinet has considered the case of the applicant thrice and rejected the proposal. Respondents have submitted that the 3rd advertisement has been published by the PESB on 19.03.2010 calling for application for selection to the post of Director (Finance) BSNL. The applicant did not apply for the post and was, therefore, not short listed for interview which was held on 26.08.2010. In the meantime, the PESB has recommended a Panel of two successful candidates, to be considered for appointment against the said post. While processing the proposal for approval of the ACC, the same was returned with the advice that the stay order granted should be got vacated before the approval of the ACC. It is stated that the orders of the High Court of Delhi dated 25.08.2010 is still in operation. We have also ordered the continuance of the said stay in the present OA. It is noticed that the post has been left unfilled so far. It has been stated by the respondents that the applicant has no locus standi to stall the process of appointment to the post of Director (Finance) BSNL as he himself has not participated by submitting his application nor he has been short listed/interviewed.
18. Considering the totality of facts and circumstances of the case, we are of the considered opinion that the orders passed by the competent authority dated 18.02.2010 whereby the applicants candidature for the post of Director (Finance) BSNL was rejected is sustainable in the eyes of law. For the reasons stated within, the applicant has not made out a case calling for our intervention in the matter.
19. In view of the above facts and circumstances of the case and our discussions within, we are of the considered opinion that the OA is devoid of merits and is therefore, dismissed. We also vacate the interim orders passed by us on 3.06.2011. In the typical nature of the case, we do not make any order on costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/