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The Supreme Court raised serious questions over how P J Thomas could be appointed as CVC and continue in the post despite a pending corruption case, prompting a sharp response from the government that if impeccable integrity was an eligibility criteria, all judicial and constitutional appointments would be open to scrutiny.
A bench headed by Chief Justice S H Kapadia also wrly observed that Thomas as the Central Vigilance Commissioner will himself feel embarrassed due to the pending criminal case against him as in every case the Central Bureau of Investigation will be dealing with him. "Without looking into the file, we are concerned that if a person is an accused in a criminal case how will he function as CVC," it observed after Attorney General G E Vahanvati placed records of documents pertaining to Thomas's appointment in a sealed cover.
The bench said it will go through the file and posted the matter after two weeks. "We will sit together and go through the file," the bench also comprising Justices K S Radhakrishnan and Swatanter Kumar said. Thomas' name figures in the chargesheet filed in Kerala in a palmoleine import case.
After the file was placed before it, the apex court bench queried whether the eligibility criteria of having impeccable integrity has been met by Thomas before he was appointed as CVC. The bench told Vahanvati that the issue as to how Thomas will function as CVC when his name is there in a chargesheet will crop up at every stage. The AG sought to clarify that there was no involvement of Thomas in the palmoleine import case and the sanction to prosecute him had not been processed.
"Let us proceed on assumption that at every stage there will be allegations that you should not process a file as Central Vigilance Commissioner as you are accused in a criminal case. How will you function as CVC?," the bench said, adding "In every case the CBI has to report to him." "Under the service jurisprudence, a person cannot even be considered for promotions when a chargesheet is pending against him," said the bench. "At this stage as a chargesheet is pending against him since 2002, he is not even considered to be promoted. We are only suggesting whether he will be able to function as CVC. He himself will be an embarrassment," it said.
"Since this matter is very important, we will structure our order on this basis," it said. The bench clarified that it was not on the merits of the palmoleine import case but it only wanted to know if the whole procedure including the criteria of impeccable integrity was followed in the appointment of Thomas as CVC. Vahanvati maintained that whole process was followed and told the court that if such allegations are taken into consideration, every judicial and constitutional appointment may come into scrutiny
The bench said the palmoleine case was handled by the state wing of CVC and Thomas is heading the central organisation. The AG said the former Chief Election Commissioner J M Lyngdoh, who filed the petition along with others, had himself prepared Thomas' Annual Confidential Report stating that his integrity was beyond doubt but now he is challenging his credentials.
Earlier, the apex court had decided to examine the file on appointment of Thomas, whose name is also allegedly involved in the cover-up of 2G spectrum scam, saying it wanted to know if eligibility criteria had been properly followed or not. The apex court had also said that it would like to see if the consultation process has been followed for the appointment.
The two PILs--one filed by an NGO Centre for Public Interest Litigation and other by the former CEC--had contended that Thomas was considered for the crucial post despite objection from the Leader of the Opposition who was part of a high-power committee for the appointment of CVC. The petitioners had contended that Thomas could not be considered as a person of "impeccable integrity" as he was chargesheeted in the Palmoleine import scam when he was Kerala's Secretary in the state Ministry of Food and Civil Supplies and had secured bail from the local court.
The PILs said he also could not be appointed as CVC on account of "conflict of interest" as till recently he was serving as the Secretary in Telecom Ministry and there was allegation that he was involved in the cover-up of the 2G spectrum scam, which, according to the petitioners, has caused a loss of Rs 70,000 crore to the state exchequer. The civil societies have sought the court's direction to declare Thomas' appointment as illegal on the ground that there was alleged violation of Section 4 of Central Vigilance Commission Act as the prime minister and the home minister insisted on his name despite objection by the leader of the opposition, which shows the government had decided in advance to appoint him.
"The prime minister and the home minister recommended Thomas for selection despite the fact that the leader of the opposition objected to his name being selected. So, the leader of the opposition was forced to record her dissent. Hence, her presence was rendered meaningless in the appointment," the petition alleged.
It further said, "When the country's highest court (apex court) and Parliament held that the CVC would be selected by the three-member committee including the Leader of the Opposition, it was patently obvious that the said committee would decide by unanimity or consensus. It was nowhere said that the committee would decide by majority. The latter interpretation would make the presence of the leader of the opposition meaningless as the prime minister and the home minister would always be ad-idem and the person selected would be a government nominee. Therefore, the manner in which Thomas was selected makes his appointment illegal, bad in law and hence void ab-initio".