Delhi High Court
Shri Y.N.P. Sinha vs Union Of India (Uoi) And Ors. on 7 March, 2000
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. Petitioner is working as General Manager (Coordination) in Nathpa Jhakri Power Corporation Limited/respondent No. 3 (hereinafter referred to as NJPC, for short), He is aspiring to become Director (Civil). The post of Director (Civil) is a Board level appointment and Public Enterprises Selection Board (hereinafter referred to as PESB, for short) considers the candidates for such appointment. As per the procedure prescribed for making Board level appointments, when such post is advertised/notified the candidates who fulfill eligibility conditions attached to such post and apply for the same are interviewed/considered by PESB. PESB after interviewing the candidates prepare a panel of selected candidates. Thereafter vigilance clearance from Central Vigilance Commission (hereinafter referred to as CVC, for short) is sought and once the names which are cleared by CVC, are sent to ACC and ACC may select one of the persons named in the panel after giving due consideration to various aspects. Such person selected by ACC is then appointed to the post. In the instant case post of Director (Civil) having fallen vacant. Ministry of Power, Government of India (hereinafter referred to as MOP, for short) circulated the vacancy of Director (Civil) in NJPC sometime in June, 1997. Petitioner applied for the post through proper channel. His name was forwarded by Chief Managing Director, NJPC vide letter dated 7th July, 1997. He was interviewed by PESB alongwith other candidates and as per the panel of selected candidates prepared by PESB name of petitioner appears at serial No. 1. However, respondent No. 1 is not forwarding his name to ACC. On the other hand, respondent No. 1 is contemplating to make appointment of respondent No. 5, who is Chief Manager, in National Hydro Power Corporation (hereinafter referred to as NHPC, for short), to this post. Petitioner has filed this writ petition challenging the action of CVC-respondent No. 4 in not giving him vigilance clearance to him and prays that he should be appointed to the post of Director (Civil) in NJPC as per rules and in accordance with the merit list prepared by PESB for the said post.
2. Petitioner claims himself to be a meritorious employee with unblemished record. He is Civil Engineer who had started his career with M/s. Hindustan Steel Construction Company, a Government of India undertaking where he remained for seven years. In June 1975 he was posted at Hardware with Bharat Heavy Electricals Limited (hereinafter referred to as BHEL, for short). After working for three years in BHEL petitioner joined National Thermal Power Corporation (hereinafter referred to as NTPC, for short) as Senior Engineer (Constructions) in July 1978 and claims his outstanding performance while working on various positions in NTPC. However, some of his actions/decisions were questioned by the Vigilance Department, and subsequently, by C.T.E. of CVC in respect of certain Civil Works under execution in the above project. The petitioner was issued three charge-sheets for minor penalty in 1986 for certain works executed during 1983-85. Petitioner claims that he clarified all the points raised in the said charge-sheets and finally the competent authority of NTPC came to the conclusion that there was no fault of the petitioner. Infact, according to him, thereafter in the year 1988 he was given responsibility to head the construction department of the project as Chief Construction Manager and due to his superlative performance he was promoted as Deputy General Manager (Construction) in 1991 and was posted at National Capital Power Project (hereinafter referred to as Project, for short) in NTPC near Delhi as Head of the Construction Department and he successfully handled the said Project also. Thereafter he was selected as Additional General Manager in NJPC against an open advertisement and he joined NJPC in January, 1996 and was given independent charge as Head of the Project of Nathpa Jhakri Hydro Electric Power Project, Jhakri, on 14th March, 1996 as Additional General Manager (In-charge). Subsequently, based on the petitioner's outstanding contribution to the project, his technical capability and project management ability, he was promoted as General Manager (Project) on 9th February, 1997 vide Office Order of the even date.
3. As General Manager he took over the charge, as Head of the Project of NJPC which according to him was at critical stage and the progress of work was very poor. The petitioner with his honesty and dedication to his work and with his leadership technique and managerial qualities, was able to achieve success in this project to such an extent that the government as well as the World Bank officials started appreciating the improvements in the Project, whereas earlier the World Bank was criticising the progress of work and threatening to cancel the loan. Eventually, the World Bank had not only agreed to extend the loan but was also prepared to give further grant for the investigation of nearby Rampur Hydro Power Project and had expressed confidence in the NJPC management for even taking the Parwati Stage 1 and 2 Hydro Power Projects simultaneously. Petitioner further states that since December, 1996 the then Director (Civil) Sh. P.D. Prasadarao, was on leave for about seven/eight months and it was during this period that the Petitioner's hard and honest work had resulted in the successful progress of the Project. Therefore, while the performance of the petitioner was duly appreciated by the respondent No. 3 as well as the World Bank, the same was not so appreciated by Shri P.D. Prasadarao, the then Director (Civil) as on account of his absence from duty all the credit for the successful progress of the Project was being bestowed upon the Petitioner, being the General Manager of the Project. The written appreciation of the World Bank added fuel to the fire and as a revenge, the petitioner was issued a false and frivolous charge-sheet on 6th August, 1997 by Shri Prasadarao himself for alleged in-subordination and non-compliance of instructions.
4. Though the petitioner could some how submit his reply to the said charge sheet on 8th September, 1997 during the training period itself, the matter was not referred by the then Director (Civil) to the Chief Managing Director, being the next higher authority, as was required under the principles of natural justice. Though the said Director (Civil) was himself the aggrieved party in the above case, yet he chose to issue the charge sheet himself, and ultimately, acting as a judge in his own cause, awarded a penalty of withholding his promotion for one year against the petitioner. Despite the petitioner having submitted his reply on 8th September, 1997, the said order was passed on 31st December, 1997 which was the last day of the service tenure of Shri Prasadarao and he retired from services on 31st December, 1997 itself. Against the said order of the then Director (Civil) dated 31st December, 1997, the petitioner preferred an appeal dated 29th January, 1998 before the Appellate Authority, i.e. the Board of Directors as per CDA Rules. The Appellate Authority after carefully (sic) the appeal filed by petitioner and all other records, exonerated the petitioner from the said charges vide order dated 18th May, 1998.
5. It was in the aforesaid background that the post of Director (Civil) in NJPC was notified on 27th June, 1997. Petitioner applied for the said post through proper channel and was interviewed alongwith other candidates on 17th September, 1997 as a result of which his name was listed at serial No. 1 in the panel of two candidates drawn by PESB. At this stage respondent No. 5 and some other persons filed writ petition in this Court seeking direction that they may also be interviewed for reelection to the said post. This Court allowed that petition and directed that the petitioner, including respondent No. 5 in the said petition, be also interviewed by PESB on 10th November, 1997.
6. Thereafter, final panel of selected candidates was prepared and in this panel also name of the petitioner appears at No. 1 whereas one Sh. S.K. Verma is put at Sl. No. 2 and respondent No. 5 at Sl. No. 3. Petitioner alleges that in view of the aforesaid recommendation of the PESB when petitioner could be appointed as Director (Civil) disgruntled persons, in order to torpedo the same, started making various anonymous/pseudonymous complaints on trivial issues. However, no charge sheet or memo was issued to the petitioner on account of any such complaint. Not only this, CMD of NJPC provided detailed report on the charges levelled against the petitioner vide his letter dated 21st June, 1998 in response to the clearance of Joint Secretary, Govt. of India wherein he stated that allegations against the petitioner were found to be baseless and false. However, in spite thereof CVC is not giving any clearance although no such clearance is required and respondent was proposing to appoint respondent No. 5 to the post of Director (Civil) by surprisingly ignoring petitioner as well as Mr. Verma whose name appeared at Sl. No. 3 of the panel prepared by PESB. On the other hand, according to the petitioner, Vigilance of NJPC have started the exercise of fabricating, motivated allegations against the petitioner in order to justify their illegal acts of omission and commissions including devious intentions to preclude the petitioner from getting appointment to the post of Director (Civil). On the basis of these allegations petitioner has filed the instant petition in which he prays for issuance of Writ of Mandamus directing, respondents to appoint him to the post of Director (Civil) in NJPC as per rules and in accordance with the merit list prepared by the respondent No. 2 for the said post.
7. Separate counter affidavits are filed by Union of India (Respondent No. 1), NJPC (Respondent No. 3) and CVC (Respondent No. 4).
8. In the counter affidavit filed on behalf of Union of India it is stated that respondent No. 3 embarked upon the Nathpa Jhakri Hydro-electric Project (hereinafter referred to as the Project for short) (1500 MW) at approximate cost estimate of Rs. 7666.31 crores for which the World Bank has agreed to provide loan facilities upto 437 million US dollars. The project is the largest hydro-electric project in the country, larger than the Bhakhra Nangal Project and is scheduled to be commissioned by March, 2002. The World Bank who has sanctioned a substantial amount, has from time to time, expressed concern over non-appointment of a Director (Civil) as is evident from letters of January, 1999 and February, 1999 annexed as Annexure A to the counter affidavit. It is pertinent to mention that in terms of time, manpower, monetary costs and interest payable on loans, everyday's delay costs the project an amount of Rs. 5 crores approximately. The World Bank vide letter dated 28th July, 1999 has now intimated to the respondents that it would be constrained to withdraw its loan facility from the said project if no Director (Civil) is appointed. The World Bank has also realised that the project is lagging, behind and will not be commissioned as per the time schedule earlier fixed and has attributed this delay mainly to the non-appointment of a Director (Civil) to head the civil works of the project. In the event of the World Bank pulling out of the project, as it had threatened, it will be impossible to complete and commission the largest hydro-electric project of the country. It is also stated that Vigilance clearance is required in case petitioner's appointment as Director (Civil) in terms of O.M. dated 29th July, 199874th August, 1998. It is also mentioned that NTPC had informed respondent No. 3 that the petitioner was involved in a vigilance case and the CVC had advised initiation of minor penalty proceedings against the petitioner. This advice was received in August 1999 i.e., before the petitioner was interviewed by PESB. Respondent No. 1 vide its letter dated 10th November, 1997 had sought vigilance clearance in respect of the petitioner. As the CVC did not give/grant the petitioner the requisite clearance vide letter dated 3rd December, 1997 the respondent was left with no choice but to go ahead with the appointment of Director (Civil) and as a person against whom vigilance inquiries are pending and who has not been granted vigilance clearance could not have been appointed as Director (Civil), the respondents were forced to consider the next eligible person on the panel recommended by PESB for that post keeping the interest of the project in mind.
In the counter affidavit filed by NHPC, apart from reiterating the necessity of filling-up the post of Director (Civil) in view of importance of the project and pressure from World Bank, more particularly when the post is lying vacant since September, 1997 and emphasising the fact that CVC has refused to grant clearance in respect of petitioner as well as Sh. S.K. Verma, it is also mentioned that the guide-lines for appointment to the Board level Public Sector Undertakings are codified. The appointment to the post of Director (Civil) in NJPC is a Presidential appointment which is made by ACC on basis of interviews held by PESB. The CVC (now a statutory authority) gives vigilance clearance for appointment of any person by the Government of India to the post of Director in Public Sector Undertakings (hereinafter referred to as PSU, for short) of the Government of India so that officers with doubtful integrity do not occupy the top posts in PSUs. Relevant extract from the instructions issued by the CVC vide Memo No. 3 (iv) 99 dated 12th July, 1999 read as under:
"In order to remedy the defects arising from the existing procedure it has been decided that 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".
9. It is also stated that there are number of cases pending against the petitioner and their status as on September, 1999 as to penalty order/exonerations is indicated in chart annexed by the petitioner as Annexure, R-2 to their counter affidavit. Status of these cases as per the said chart is given as under:
STATUS OF VIGILANCE CASES PENDING AGAINST SHRI YNP SINHA IN SEPT. 1997 WHEN HE WAS INTER VIEWED FOR THE POST OF DIRECTOR (CIVIL) IN NTPC LTD.
Particulars of Charge Status of the Case
1. Ed (Vig.) NJPC had advised the Disciplinary Authority for initiation of mi-nor action against Shri YNP Sinha G.M. (Project), in respect of recruitment of Driver & Technician (ECG) w.e.f. 2.4.97 who are relatives of Shri YNP Sinha.
The Board of Directors (Appellate Authority) gave 'warning' to Shri YNP Sinha vide letter dated 27.5.98 (Appendix- 'A').
2. Complaint had been read that undue favour has been shown in the selection of M/s. Aurora Photographers while placing order on 20/21.9.1996- CBI, Chandigarh Branch had made a SIR and had requisitioned documents from NJPC. However matter remained pending with CBI.
Charge-sheet for Major Penalty has been issued on 27.7.99 (Appendix-'B1 here-to).
3. A complaint has been received that the official telephone had been misused amounting to rupees one to two lakhs for private use during the year 1996. The investigation was being conducted.
The investigations suggest that an amount of Rs. 4,75,555/55 was of recoverable on account by personal telephone used Mr. YNP Sinha. The matter has been referred to CVC on 15.9.99 for his advice as to action be taken. (Appendix 'C').
4. A complaint had been read, that Sh. Sinha's son a computer engineer was taken as trainee by M/s. ABB & sent to Germany for training due to personal pressure of Shri YNP Sinha. M/s. ABB has official dealings with Shri YNP Sinha. Shri YNP Sinha has not taken any permission before doing so as per NJPC rules and only had informed the competent authority after his son had been taken by M/s. ABB.
The misconduct could not be established after investigation. Hence, the matter has been closed by the Manage-ment.
5. Director (Civil) NJPC had issued a charge sheet on 6.8.97 (Appendix 'D') to Shri YNP Sinha. Sh. Sinha has re-plied to the charge sheet.
Director (Civil) issued penalty order on 31.12.97 (Appendix-E) stopping pro-motion for year. However, on Appeal, Board of Directors exonerated him vide letter dt. 18.5.1998 (Appendix 'F').
10. Additionally, it is mentioned that the petitioner is also charge sheeted in respect of two other cases, the details of which are given in the Statement prepared as Annexure R-3 and which reads as under:
STATUS OF PENDING CASES AGAINST SHRI Y.N.P. SINHA COMMENCED SINCE OCTOBER, 1997 (AFTER HE WAS INTERVIEWED IN SEPT. 1997) FOR THE POST OF DIRECTOR (CIVIL) IN NJPC LTD.
Particulars of Charges Present Status (As in Sept. 1999)
1.
Shri YNP Sinha awarded contract on 5.10.96 to M/s. Global Wireless not Technology Ltd. Delhi, by adopting pick and are choose method (without calling tenders) when he was AGM (Incharge) Project, NJPC, for a sum of Rs. 9,61,381/-.
Charge-sheet has been issued on 20.7.1999 (copy enclosed as Appendix-G). Shri Sinha has not replied to the charge sheet. Major Penalty proceedings are envisaged.
2. Shri YNP Sinha remained absent from headquarters for 217 days (from 27.7.98 to 28.2.99). Shri YNP Sinha claimed a sum of Rs. 86,303/- towards hiring of DLY Taxis at Delhi from 6/98 to 8/98 him. (details given in the charge-sheet).
Charge-sheet issued on 27.7.99 (copy enclosed as Appendix-B) hereto. Shri Sinha has not far replied to the charge-sheet. It is proposed to hold major penalty proceedings against him.
11. NJPC has also filed additional affidavit wherein it is pointed out that these charge sheets were issued to the petitioner for award of contracts on M/s. Aurora Photo film Corporation and M/s Global Wireless Tech. Ltd. on the basis of information received as borne out of official record and not on the basis of anonymous complaints. It is further stated that charge sheet for claim for fraudulent bills is based on official record as verified by the Vigilance Department. It is further mentioned that CVC's latest letter dated 28.9.99 shows that petitioner is to be proceeded for major penalty with regard to telephone bills of Rs. 4,75,555/- of the petitioners. Documents in support of these aforesaid averments are annexed with this additional affidavit. Aurora Photo film Corporation and M/s Global Wireless Tech. Ltd. on the basis of information received as borne out of official record and not on the basis of anonymous complaints. It is further stated that charge sheet for claim for fraudulent bills is based on official record as verified by the Vigilance Department. It is further mentioned that CVC's latest letter dated 28.9.99 shows that petitioner is to be proceeded for major penalty with regard to telephone bills of Rs. 4,75,555/- of the petitioners. Documents in support of these aforesaid averments are annexed with this additional affidavit.
12. In the affidavit filed on behalf of CVC the procedure for appointments in Public Undertakings and the function of CVC in spite of such appointments is indicated wherein it is emphasised that CVC clearance is required for such appointments. It is also explained that:
"The MOP in order to ensure that the petitioner has the requisite clearance had in its letter to the answering defendant mentioned that in view of the minor penalty proceedings initiated against the petitioner, the Commission's advise on the matter relating to grant/denial of vigilance clearance to him was required and had thus referred the same to the Commission. The Commission, while advising on the vigilance cases against the petitioner, has categorically stated in its letter No. NBB/VGC/148 dated 3.12.1997 that the bio-data of Shri YNP Sinha, furnished by Ministry revealed that the official is reportedly being proceeded against for minor penalty action in two other different cases and that there were two other complaints under investigation. As such, the vigilance clearance was riot granted by the Commission to Shri Sinha, among others, on the basis of the factual position furnished by the MOP vide their letters dated 10th, 11th and 17th November, 1997."
13. Involvement of the petitioner in certain cases, as per CVC record is also stated in Para 6 of its counter affidavit. Thereafter following averments are made by CVC:
"As regards petitioner's erroneous conclusion that the CVC had erroneously withheld clearance, it may be emphasised that the fresh cases/complaints pending investigation, as reported by the MOP, were prime considerations in denying vigilance clearance to Shri Sinha. The MOP, in its letter dated 10.11.1997, had duly clarified the reason for seeking vigilance clearance against Shri Sinha that since the CVC had advised minor penalty against Shri Sinha, among others on 2.7.1997, the vigilance clearance was required for Shri Sinha even though he was not a Board level officer. As such, in view of the cases/complaints pending investigation against Shri Sinha, Vigilance Clearance was not given. However, in order to ensure that top level posts in PSEs are occupied by persons with exemplary service and vigilance clean track records, the Commission has recently issued guide-lines dated 12.7.1999 stipulating that vigilance clearance from the Commission in respect of all candidates recommended by PESB for appointment to any Board-level posts in PSEs (irrespective of their holding a board-level or below board-level post at that time) is necessary. Copy of the guide-lines of 12.7.99 are annexed herewith as Annexure R4/5."
14. Petitioner has filed rejoinders-affidavits to the counter affidavits filed on behalf of respondents 1 & 3 and refuted various averments contained in these counter affidavits.
15. On the basis of the averments made in the petition, rejoinder affidavits and additional affidavits filed by the petitioner, Mr. Arvind Nigam learned counsel for the petitioner submitted that the action of the CVC in not giving vigilance clearance to the petitioner was improper and arbitrary. His basic submission was that as on 1997, when his case was sent to CVC for clearance there was nothing against him. On the basis material produced before CVC at that time CVC could not have withheld the clearance. According to him, that should be treated as cut off date for the purpose of examining as to whether the action of CVC in refusing the grant of clearance was proper or not. As there were no proceeding pending against him at that time, the clearance should have been given by the CVC. Merely because some investigation was pending was no ground to withhold the clearance and for this purpose petitioner relied on the judgment of Supreme Court in the case of Union of India v. Janki Raman, and Delhi Development Authority v. H.C. Khurana, . His further submission was that in any case, in order to see that the name of the petitioner is not cleared some anonymous and pseudonymous complaints were filed against the petitioner on totally frivolous grounds and the respondent could not act on such anonymous/pseudonymous complaints. Even if these complaints were pending, the CVC should have given the clearance in the case of petitioner for his appointment as Director (Civil) and CVC/respondent could still investigate the matter. Janaki Raman case (supra) has dealt with such a situation and clearly held that the respondent do not become powerless or remediless even if sealed cover procedure is not adopted and promotion is given to the concerned employee. He also submitted that the issuance of charge-sheets in respect of certain cases, at subsequent stage was a mala fide act on the part of the respondent and all charges were frivolous with sole motive to stall the appointment.
16. He was at pains to submit that cases in which the charge-sheets were served against him were totally frivolous and in some of these cases he was even exonerated earlier and the board had decided to close the cases earlier. However, the cases were reopened although there was no fresh material or change in circumstances and charge-sheets were issued only with a motive to somehow implicate him in some cases so that he is not able to become Director (Civil) although Public State Enterprises Board (hereinafter referred to as PSEB, for short) had placed him at Serial No. 1 in the panel. His submission was that the matter be atleast sent to ACC for consideration of his case alongwith entire material so that ACC is able to take independent view of the entire case.
17. Mr. Soli J. Sorabjee, learned Attorney General of India appearing on behalf of the respondents 1 & 3 refuted the various allegations made by the petitioner and argument advanced by learned counsel for the petitioner and the submissions made by him can be summarised as under:
(1) The appointment, to the post of Director (Civil) was Board level appointment and it was not a case of promotion. Therefore the principle laid down in the case of K.V. Jankiraman (supra) which relate to adoption of sealed cover procedure would not be applicable in this case.
(2) The appointment to the post of Director (Civil) which was Board level post, was an appointment to a very high office and the respondents were required to take proper care and caution to ensure that persons with impeccable integrity are appointed to such office. If there was material on record showing that certain cases against the petitioner were pending and on the basis of allegation made against the petitioner involving irregularities, charge-sheet have been served upon him the action of the CVC in not giving clearance to the petitioner was proper and valid.
(3) In such cases the clearance could be withheld even if matters were at the stage of investigation and the charges are serious. In the year 1997, when the CVC refused the vigilance clearance vide letter dated 3rd December, 1997, it had given valid reasons in the said communication relating to the conduct of the petitioner while he was in NJPC and also that as per bio data of petitioner furnished by the Ministry, he was being proceeded against for minor penalty action in two other different cases and there were another complaint cases under investigation.
(4) In any case, it was submitted, as on today there were charge-sheets served against the petitioner the CVC had again considered the matter and rejected the clearance vide communication dated 25th November, 1999 in view of the pendency of department enquiry against the petitioner.
(5) It was further submitted that the concept of cut off date could not be made applicable in such cases and if some material comes to the notice of the CVC or for that matter the respondents before the person is actually appointed than it can be taken into consideration.
18. According to him, therefore the exercise done by the CVC again, in view of the subsequent events having taken place after rejection of the clearance earlier vide letter dated 3.12.1997 was valid and proper and the reasons given in this communication dated 25.11.1999 should be taken into consideration. Communication dated 25th November, 1999 showed that conduct of the petitioner had come to adverse notice in number of cases. Major penalty proceedings were also pending against the petitioner in three cases and CVC is advised for initiation of major penalty proceeding which was also pending consideration with competent authorities in the fourth case and therefore the CVC had rightly withheld the vigilance clearance in the case of the petitioner.
19. I have gone through the pleadings and given my utmost consideration to the respective submission of the parties. Before proceeding to examine the merit of the respective submissions, it would be appropriate to understand the nature of appointment and the role of CVC in such appointments. NJPC is a Public Sector Enterprise (PSE). It is corporated under the Companies Act and is governed by its own rules and regulations as well as Memorandum and Articles of Association. However, appointment to the Board level posts are being made in all such PSUs, including NJPC, by Government of India and persons hold such office become employees of Government of India and they hold Office on the terms and conditions on which they are appointed. Government has constituted Public Sector Enterprises Board. It interviews the eligible candidates and prepares the panel of the persons, in order of merit, for its recommendation. This panel is forwarded to ACC alongwith the service records of the persons who are recommended for appointment and whose names appear in the panel. The ACC which is a very high level body makes the ultimate selection of a person from amongst those whose name appear in the panel and such person is thereafter appointed to the Board level post for which selection had taken place. It may be mentioned that the appointment of such Directors in the board of Directors are that of functional Directors. The post being top/senior management post in PSUs due care and caution needs to be exercised while making appointment to this post. For this reason, after the PESB prepares the panel on the basis of interviews etc. held, scrutiny of antecedents of such persons recommended for board level post in these PSUs takes place from vigilance angle. Instructions in this respect were issued by Department of Personnel and Training vide its Office Memorandum No. 27(5)-EO/88 (ACC) dated 4th August, 1988 and the same reads as under:
"The question for evolving a mechanism to ascertain and scrutinise the antecedents of person recommended for Board level posts in public sector enterprises has been examined by the Government. It has been decided that it would be primarily be the responsibility of the Administrative Ministry/ Department concerned to ensure that the candidates, whose appointments as Functional Director/CMD in public sector enterprises is recommended for being considered by the Appointments Committee of the Cabinet should be cleared from vigilance angle and that the Ministry/Department concerned should bring this fact specifically to the notice of 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. As regards the person who are holding below Board level positions in public sector enterprises, the CVO in the Ministry/Department concerned should be consulted, beside the CVO in the Public Sector enterprise where the candidate may be working for the present.
The Ministry of Industry (Department of Public Enterprises) may comply with the above mentioned guidelines while sending proposals to the Establishment Officer to the Government of India for being placed before the Appointment Committee of the Cabinet for its consideration."
20. If may be mentioned here that by another Office Memorandum of September, 1995 Department of Personnel and Training has stressed that it is mandatory to have clearance from vigilance angle for top and below top board level post in PSEB. Thus it is at this stage that role at CVC comes into operation and unless CVC gives its clearance to the person recommended for board level post in any PSU it is not forwarded to ACC for further and final consideration.
21. The appointment to board level post being fresh appointment that too by different employer namely, the government. It is obviously not "promotion". It is not necessary that a person who is working in a particular PSU on a lower post, gets selected for Board level post. If a departmental candidate is eligible he can also apply for such Board level post and can be considered alongwith other eligible candidates who may be outsiders. If the departmental candidate is selected for appointment to such Board level post he severs his status as employee of the said PSU and ceases to exist and he normally gets his terminal benefits as an employee of the said PSU and thereafter he joins same PSU as functional Director/Chief Managing Director in the same PSE, but on new terms and conditions on which he is appointed by Central Government, President of India being his appointing authority such appointments are normally tenurial. Since such an appointment is not promotion, the principle stated in Janaki Raman (supra) would not be applicable for such appointments. Janaki Raman (supra) dealt with Office Memoranda dated January 30, 1982 and 12.1.1988 issued by the Government which prescribed the procedure for adopting sealed cover while considering the candidature of the employees for promotion in certain cases and in that context the Supreme Court rules as to which cases and at what stage the sealed cover procedure could be adopted. In Office Memoranda dated 31.1.1982 and 12.1.1988, it was prescribed that sealed cover procedure can be adopted in the following cases :
"cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings, or, (c) against whom prosecution has been launched in a Court of law or sanction for prosecution has been issued"
However, it was held that the sealed cover procedure should be resorted to only when the departmental proceeding against the concerned employee were pending and/or criminal trial against the said employee was pending. It was further held that a departmental proceeding would be treated as "pending" only when charge-sheet was issued against the concerned employee and not when allegations against the said employee were at investigation stage. This is what the Court observed (speaking through Sawant, J.) "6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when 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. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations taken an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy."
22. Thus the Court was examining the case of promotion and in that context the circumstances when sealed cover procedure is to be resorted to was discussed. What was under consideration was Office Memorandum dated 30th January, 1982 and Memo dated 12th January, 1988 which laid down the cases/situations when such sealed cover procedure could be adopted. In such cases, the person is considered for promotion but the findings of the DPC are kept in sealed cover to be opened after the conclusion of disciplinary/Court proceedings. Thus is not the situation when person is to be appointed for board level post. Neither there is a question of adopting any sealed cover procedure nor there would be a situation when after the conclusion of the departmental/criminal proceeding such sealed cover is to be opened. Therefore, the case of Janaki Raman (supra) which deal with adoption of sealed cover procedure would obviously have no application in the instant case. The procedure here, as already noticed above, is entirely different. What is required here is the clearance of the person recommended for board level post in PSEs, from vigilance angle.
23. As per the procedure laid down for appointment to such post it is mandatory to have CVC clearance. The question that may arise for consideration at the stage when the scrutiny of antecedents of such persons recommended for board level post is to be done by CVC can be formulated as under:
1. What kind of material the CVC is required to take into consideration?
2. Whether the CVC can take into consideration the allegation against such person/candidate which are under investigation? or, going by the spirit of the judgment in the case of Janaki Raman (supra) clearance should be withheld only if departmental proceedings or criminal prosecution are "pending".
3. Whether there should be any cut off date for consideration of such material?
24. For answering the aforesaid questions one may have to take into consideration the nature of appointment and bear in mind the guide-line contained in Office Memorandum dated 4th August, 1988 and September, 1995 issued by Department of Personnel and Training. Undoubtedly board level post is top/one of the top level post in any PSU. Functional Director or Chief Managing Director, as the case may be, on his appointment to the said post is going to hold high position with vast powers. It is because of this reason that utmost care has to be taken for appointment of a person to such post and that is why specialised board, namely, PESB is constituted. Again for same reason, even after a person is recommended by the PESB before his name is forwarded to ACC it is mandatory to obtain clearance from vigilance angle. As per Office Memorandum dated 4th August, 1988 before giving the vigilance clearance the CVO in the Ministry/Department or CVC, as the case may be, is supposed to hold "scrutiny of antecedents" of such person. The words "scrutiny of antecedents" are of wide sweep and consideration would not be confined only in respect of the cases wherein departmental proceedings or criminal proceedings are pending. Obviously, the relevant material could include consideration of those cases where allegations against such person are pending investigation. Further, consideration of the material forming part of the disciplinary proceedings or criminal proceedings which are pending against such officer is not in dispute at all. Therefore, when scrutiny of antecedents of a person is to take place any material which may be relevant and which throws light on the antecedents of such a person on the basis of which CVC can form the opinion about the integrity and uprightness of such person and as to whether such a person would be fit to hold top and below top board level post becomes the relevant material. Once this view is taken, it is difficult to agree with the submission of the petitioner that as in 1997, no charge-sheet or criminal proceeding was pending against the petitioner, vigilance clearance could not be withheld by the CVC. For the same reason, it is also not possible to agree with the submission of the petitioner that there should be a cut off date for the purpose of consideration of the material. Before actual appointment takes place, any material which is relevant and can throw light on the antecedents of a person can be scrutinised by the CVC. Since is not a case of promotion, the situation as prevailing in the case of Janaki Raman (supra) would not be applicable. In the case of promotion, the Court was concerned with the situations where because of inordinate delay in preliminary investigation the eligible persons are deprived of promotion. The Court noticed that when such investigations are initiated at the instance of interested persons they are kept pending deliberately for long time and in the process the concerned employee is denied the promotion legitimately due to him. The Court found solution to meet with the situations when allegations against a particular employee were serious and authorities are keen in investigating them by observing that in such cases ordinarily it would not take much time to collect the evidence and finalise the charges, observing further that authorities had the power to suspend employee under relevant rules and on suspension itself the sealed cover procedure could be adopted and therefore authorities were not remediless. Such a situation cannot be made applicable when the person is to be appointed for board level post. Such post cannot be kept vacant for long and the result of the person recommended for board level post cannot be kept in sealed cover. Somebody has to be appointed for a particular post which may be a solitary post like the Director (Civil) in the instant case. Charges in such cases may not be serious enough to justify suspension of such a person but serious enough to merit withholding of vigilance clearance. Therefore such cases are to be looked into by adopting different yard sticks together. The guiding factor being whether the person is blemish less or the antecedents are such that they warrant withholding of vigilance clearance.
25. Once based on such relevant material CVC has considered the case of such a person after scrutinising his antecedents and comes to one or the other conclusion, that would be reasonable exercise of power. Of course one may put a word of caution here. When CVc considers such a material it should be careful enough to find out as to whether material which is placed before it and which puts question mark about the integrity of a person is genuine material or whether it is a material which is planted against such person by those who are disgruntled or biased against the concerned person/candidate. It is a matter of common knowledge that whenever selection process to such board level post in PSUs is under way, people start writing frivolous complaints. For this reason, anonymous/ pseudonymous complaints are normally to be ignored. CVC should also ensure that the complaints against the concerned person/candidate are not motivated or fabricated at this stage just to stall his appointment to the post. The function of CVC therefore is delicate one: on the one hand it has to ensure that people with impeccable integrity and honesty are appointed to board level post and on the other hand it has to ensure that innocent person do not become victim of the dishonest, malicious and frivolous complaints made by people with vested interest.
26. When the facts of the present case are examined in the light of the principle enunciated above, it is not possible to give any relief to the petitioner in this case. No doubt, petitioner has some grievance in stating, that charge-sheets issued against him only after he was empanelled by PESB for the post of Director (Civil) but one cannot jump to the conclusion that the charges are the result of any malafide action on the part of the respondents. One charge-sheet relates to showing undue favour in the selection of M/s. Arora Photographers while placing order on 20/21st September, 1996. Thus the matter relate to the year 1996 much before the petitioner was interviewed by PESB for the post of Director (Civil). The matter remained pending with CBI and since CBI did not inform the outcome of their investigation, the departmental investigations were conducted and CVO recommended major penalty proceeding to be taken in such cases. This was accepted by disciplinary authority and in these circumstances charge-sheet dated 27th July, 1999 came to be served upon the petitioner. Similarly, second charge-sheet relates to misuse of official telephone provided at house during the year 1996. No doubt the petitioner has explained that this matter was examined by the Board of Directors and ultimately Board of Director had earlier decided to close the matter. Respondents have given the explanation that investigation was being conducted and it was ultimately found that a sum of Rs. 47555.55 paise was recoverable from the petitioner on account of personal telephone use by him and the matter has been referred to CVC on 15th September, 1999 for its advise. Moreover the petitioner is now served with another charge-sheet dated 20th July, 1999 for major penalty proceedings on the allegations that he awarded contract on 5th October, 1996 to M/s. Global Wireless Technology Ltd. Delhi by adopting pick and choose method. One more charge-sheet is issued on 27th July, 1999 on the allegations that he remained absent from head quarter for 217 days w.e.f. 27th July, 1998 to 22nd August, 1999. Keeping in view all these factos, the CVC vide its communication dated 25th November, 1999 withheld the vigilance clearance. Reasons stated in this communication reads as under:
(a) The Commission had advised initiation of minor penalty proceedings against Shri Sinha, the then Manager, NTPC, vide its OM No. 7T-PWR-12 dated 2.7.1997, in a case relating to the site levelling and grading work pertaining to Rihand STPS. The case against Shri Sinha was, however, closed vide Commission's OM dated 20.10.1997 as he had resigned from the NTPC and joined NJPC and initiation of minor penalty action against him was not possible as per rules:
(b) The Board of Directors have issued him a warning, vide letter dated 27.5.1998, in the matter pertaining to the recruitment of his relatives as Driver and Jr. Technician;
(c) The NJPC have issued a charge-sheet for major penalty to Shri Sinha on 27.7.1999 for showing undue favours to M/s. Aurora Photographers while placing order on them;
(d) The Commission has advised initiation of major penalty proceedings against Shri Sinha, vide its OM No. 99/PWR/018 dated 28.9.1999 in a case relating to the misuse of imaret phones, which is pending consideration with the disciplinary authority;
(e) A charge sheet for major penalty has been issued to Shri Sinha on 20.7.1999 for awarding a contract to M/s. Global Wireless Technology Ltd. Delhi in the year 1996 for not following the proper procedure;
(f) A charge-sheet for major penalty has been issued to Shri Sinha on 27.7.1999 for incurring an expenditure of Rs. 22,499 on account of hiring of taxis at Delhi on the Company's account while on leave.
(g) The matter arising out of a complaint made by Shri F.S. Chauhan, Manager (EMG), NCCP, Dadri, alleging his removal from the R & R works by Shri Sinha and others, by falsely recording certain remarks on a fabricated complaint has been referred to the Commission and is under its consideration; and
(h) The Commission, vide OM No. 5Q-PWR-14 dated 1.9.1986, had advised initiation of minor penalty proceedings against Shri Sinha, the then Manager (Const.), NTPC. The NTPC, however, had intimated to the Commission vide letter dated 22.1.1990 that they had issued him a recordable warning.
Thus, it is observed that major penalty proceedings are pending against Shri Sinha in three cases and the Commission's advice for initiation of major penalty proceedings against him is pending consideration with the competent authorities in the fourth case. In addition, the minor penalty proceedings, as advised by the Commission, could not be initiated against him in another case as he had left the NTPC, where he had allegedly committed the misconduct, and initiation of minor penalty action by the new organisation, viz. NJPC was not possible for the misconduct committed by him in the previous organisation. Further, he was issued warnings in two cases and one more case against him is pending consideration in the Commission. Therefore, the antecedents of Shri Sinha, as indicated above, do not warrant his consideration for the post of Director (Civil) in the NJPC. The Commission would, therefore, withhold the vigilance clearance in respect of Shri Y.N.P. Sinha, GM, NJPC, for his appointment against the post of Director (Civil), NJPC."
27. Aforesaid reasons stated in this communication are germane and relevant for withholding the vigilance clearance by CVC. Once it is found that the CVC took into consideration the relevant material and came to be particular conclusion, this Court in exercise of its jurisdiction under Article 226 of Constitution of India cannot sit as appellate authority and substitute its own wisdom with that of CVC.
28. In this writ petition, petitioner has prayed for issuing of writ of mandamus directing the respondents to appoint him to the post of Director (Civil) in NJPC as per rules and in accordance with merit list as prepared by respondent No. 2 for the said post. This relief even otherwise cannot be granted to the petitioner inasmuch as merit list prepared by respondent No. 2 is only a recommendation and ultimate selection is to be made by ACC. However, before the name can be forwarded to ACC vigilance clearance is mandatory which the petitioner has failed to get. This writ petition accordingly fails and into consideration the relevant material and came to a particular conclusion, this Court in exercise of its jurisdiction under Article 226 of Constitution of India cannot sit as appellate authority and substitute its own wisdom with that of CVC.
In this writ petition, petitioner has prayed for issuing of writ of mandamus directing the respondents to appoint him to the post of Director (Civil) in NJPC as per rules and in accordance with merit list as prepared by respondent No. 2 for the said post. This relief even otherwise cannot be granted to the petitioner inasmuch as merit list prepared by respondent No. 2 is only a recommendation and ultimate selection is to be made by ACC. However, Before the name can be forwarded to ACC vigilance clearance is mandatory which the petitioner has failed to get. This writ petition accordingly fails and is dismissed.
There shall be no order as to costs.