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17. In the CVC case a three judge Bench of this Court held that the recommendation for appointment of Shri P.J. Thomas as the Central Vigilance Commissioner was non-est in law and, consequently, quashed his appointment to that post. The recommendation for appointment of Shri P.J. Thomas was made, by a majority of 2:1, by a committee consisting of (i) the Prime Minister, (ii) the Minister of Home Affairs and (iii) The Leader of Opposition in the House of the People (referred to in the judgment as the High-Powered Committee or the HPC). The Court held that the recommendation was non-est because the HPC had failed to take into consideration the pendency of case No. 6 of 2003 (relating to the import of Palmolein oil by the Kerala Government), in which the Government of Kerala had accorded sanction for the prosecution of Shri P.J. Thomas (among others) for committing offences punishable under Section 120-B of the Penal Code read with Sections 13 (i) (d) of the Prevention of Corruption Act and had based its recommendation entirely on the blanket clearance given to Shri P.J. Thomas by the CVC (then in office) and the fact that during the pendency of the criminal case Shri P.J. Thomas was appointed as Chief Secretary of Kerala, then as the Secretary of Parliamentary Affairs and subsequently as the Secretary, Telecom.

18. At the first glance the CVC case appears to have some parallels with the case in hand and in order to apply the decision in the CVC case to the present case Mr. Shanti Bhushan extensively cited from the judgment the passages where this Court identified the CVC as an institution and an “integrity institution”, stressed the imperative to uphold and preserve the integrity of that institution and observed that the recommendation for appointment as CVC should be not only with reference to the candidate but the overarching consideration should be the institutional integrity of the office. (See paragraphs 34-37, 42, 43, 47, 59 and 89 of the judgment).

19. We have given the most careful consideration to the CVC decision and the submissions made by Mr. Shanti Bhushan on the basis of that decision, all the time bearing in mind that the Court must not overlook or condone something that may have the effect of lowering down the people’s faith or trust in the judges or in courts. But we find that though there are some superficial similarity between the CVC case and the case in hand, the two cases are quite different in their core issues and we find it impossible to justly apply the CVC decision to the facts of the case in hand.

20. In the CVC case the HPC was not unaware of Shri P.J. Thomas being an accused in a pending case for offences punishable under Sections 120-B of the Penal Code read with Section 13(1)(d) of the Prevention of Corruption Act. The recommendation that the HPC made in exercise of the statutory power under the proviso to Section 4 of the Central Vigilance Commission Act, 2003 was in a sense in defiance of the pending trial before the criminal court. The genesis and the developments taking place in the criminal case are discussed in paragraph 8 to 21 of the judgment in the CVC case from which it appears that the institution of the case was preceded by the report of the Comptroller and Auditor General, followed by the report by the Public Undertaking Committee of the Kerala Assembly. On the basis of the reports, at least two writ petitions were filed (unsuccessfully) seeking direction of the High Court for institution of a criminal case. The criminal case was finally filed after the new government came to power in the State following the election on May 20, 1996. Even after the institution of the case the matter had repeatedly gone to the High Court and traveled up to this Court. The Government of Kerala had made repeated requests to the Central Government in the Department of Personnel and Training for grant of sanction for prosecution of Shri P.J. Thomas. The matter had gone to the Central Vigilance Commission and there were its recommendations on record for initiation of disciplinary proceedings against Shri P.J. Thomas. In paragraph 44 of the judgment, the Court pointed out that between 2000 and 2004 there were at least six noting of the DoPT suggesting that penalty proceedings may be initiated against Shri P.J. Thomas.