Shri Rakesh Asthana – questioned the appointment to the post of Special Director, CBI= in Mahesh Chandra Gupta vs. Union of India and Others (2009) 8 SCC 273 has highlighted the fact that there is vital difference between judicial review and merit review. Once there is consultation, the content of that consultation is beyond the scope of judicial review though lack of effective consultation could fall within the scope of judicial review.= Further, even in the FIR filed by the CBI, the name of Shri Rakesh Asthana has not been mentioned at all. Thus, lodging of FIR will not come in the way of considering Shri Rakesh Asthana for the post of Special Director, after taking into consideration his service record and work and experience. From the Minutes of the Meeting (MoM) of the Selection Committee, we find that the news items reported in the print and electronic media that no decision was taken with respect to the appointment on the post of Special Director, CBI in the 12 meeting of the Selection Committee held on 21.10.2017 are factually incorrect.- the appointment of Shri Rakesh Asthana – Respondent No. 2 herein to the post of Special Director, CBI does not suffer from any illegality. The writ petition fails and is dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1088 OF 2017
Common Cause …. Petitioner(s)
Versus
Union of India and Others …. Respondent(s)
O R D E R
R.K. Agrawal, J.
1) By means of the present public interest litigation (PIL),
the petitioner, Common Cause, a Registered Society, through
its President Shri Kamal Kant Jaswal, questions the validity of
the order dated 22.10.2017 issued by Secretariat of the
Appointments Committee of the Cabinet, Department of
Personnel and Training (DoPT) appointing Shri Rakesh
Asthana – Respondent No. 2 herein as the Special Director,
Central Bureau of Investigation (CBI) on the ground that the
appointment has been made illegally, arbitrarily, mala fide and
in violation of the principles of impeccable and institutional
integrity.
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2) We have heard learned Shri Prashant Bhushan, learned
counsel for the petitioner and Mr. K.K. Venugopal, learned
Attorney General appearing for the Union of India.
3) Shri Prashant Bhushan, learned counsel contended that
this Court in Vineet Narain and Others vs. Union of India
and Another (1998) 1 SCC 226 has laid down the procedure
for appointment of Director, CBI which is as under:-
“58.6. Recommendations for appointment of the Director,
CBI shall be made by a Committee headed by the Central
Vigilance Commissioner with the Home Secretary and
Secretary (Personnel) as members. The views of the
incumbent Director shall be considered by the Committee for
making the best choice. The Committee shall draw up a
panel of IPS officers on the basis of their seniority, integrity,
experience in investigation and anti-corruption work. The
final selection shall be made by the Appointments
Committee of the Cabinet (ACC) from the panel
recommended by the Selection Committee. If none among
the panel is found suitable, the reasons thereof shall be
recorded and the Committee asked to draw up a fresh
panel.”
4) Learned counsel further contended that the CBI has been
established under the Delhi Special Police Establishment Act,
1946 (in short ‘the DSPE Act’) and to give statutory effects to
the directions given in Vineet Narain (supra), the DSPE Act
was amended in 2003 vide Central Vigilance Commission Act,
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2003 to provide that the Director, CBI and officers above the
post of Superintendent of Police shall be appointed by the
Central Government on the recommendations of the Central
Vigilance Commissioner, the Vigilance Commissioners and two
Secretaries to the Government of India.
5) The DSPE Act was further amended by the Lokpal and
Lokayuktas Act, 2013 to provide for a mechanism for the
appointment of Director, CBI as well as for the appointment of
officers to the post above the Superintendent of Police. As in
the present petition, the selection and appointment of the
Special Director, CBI is under challenge and not the selection
and appointment of the Director, CBI, only Section 4C, as
substituted by the Act of 2013, has to be considered. Section
4C of the DSPE Act provides for the procedure for appointment
of Superintendent of Police and above reads as under:-
“4C. Appointment for posts of Superintendent of Police
and above extension and curtailment of their tenure, etc.

(1)The Central Government shall appoint officers to the
posts of the level of Superintendent of Police and above
except Director, and also recommend the extension or
curtailment of the tenure of such officers in the Delhi
Special Police Establishment, on the recommendation of a
Committee consisting of:-
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a) The Central Vigilance Commissioner –
Chairperson
b) Vigilance Commissioners – Members
c) Secretary to the Government of India in charge of the
Ministry of Home – Member, and
d) Secretary to the Government of India in charge of the
Department of Personnel – Member
Provided that the Committee shall consult the Director
before submitting its recommendation to the Central
Government.
(2) On receipt of the recommendation under sub-Section
(1), the Central Government shall pass such orders as it
thinks fit to give effect to the said recommendation.”
6) Thus, the appointment on the post of Superintendent of
Police and above has to be made by the Selection Committee
in consultation with the Director, CBI. Shri Prashant
Bhushan, relying upon the news reports dated 22.10.2017 in
the India Today and reported on 23.10.2017 in ‘The Pioneer’
and the ‘The Hindu’ as also the newspaper report dated
24.10.2017 published in ‘The Pioneer’ submitted that no
decision was taken by the Selection Committee in its meeting
held on 21.10.2017 regarding the appointment of Shri Rakesh
Asthana – Respondent No. 2 on the post of Special Director,
CBI, and therefore, the order dated 22.10.2017 issued by the
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Appointments Committee of the Cabinet (ACC) is wholly illegal
and contrary to law.
7) Learned counsel for the petitioner, relying upon the
diaries and other papers seized in the raid conducted in the
premises of Sterling Biotech and Sandesara Group of
Companies where on some pages of the diary, the name of
Shri Rakesh Asthana – Respondent No. 2 herein finds place as
also in the FIR dated 30.08.2017 filed by the CBI, in the
column of details of known/suspected/unknown accused with
full particulars, a mention has been made for “other unknown
public servant and private persons”, contended that in any
event Respondent No. 2 could not have been recommended for
appointment as Special Director, CBI as the matter is under
investigation.
8) He relied upon a 9-Judges Bench decision of this Court
in Supreme Court Advocates-on-Record Association and
Others vs. Union of India (1993) 4 SCC 441 to submit that
consultation is to be effective and primacy has to be given to
the views of the persons consulted.
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9) Learned counsel for the petitioner further relied upon a
decision of this Court in Centre for PIL and Another vs.
Union of India and Another (2011) 4 SCC 1 in support of his
submission that institution is more important than an
individual and the decision to recommend has got to be an
informed decision keeping in mind that the institution has to
perform an important function.
10) Learned counsel further contended that the son of
Respondent No. 2, viz., Ankush Asthana has worked for 2
years, 11 months with M/s Sterling Biotech as Assistant
Manager (papers and diaries of which Company had been
seized) and the cocktail party of the wedding of the daughter of
Respondent No. 2 was held in the farm house of M/s
Sandesaran Group of Companies. He also relied upon a news
reported in the Indian Express dated 21.11.2017 wherein a
Professor of the University of London had expressed doubt and
concern about the working of the Vigilance Commission
concerning CBI’s Additional Director’s recent effort to win
promotion to bring home the point that the appointment of
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Shri Rakesh Asthana – Respondent No. 2 as Special Director
could not have been made at all.
11) Learned Attorney General for India placed before us the
Minutes of the Selection Committee Meeting held on
21.10.2017 in the Office of the Central Vigilance
Commissioner and submitted that the Selection Committee
had considered the confidential letter dated 21.10.2017
submitted by the Director, CBI and had discussed the same in
the meeting. The Selection Committee had given good reasons
for not accepting the contents of the letter submitted by the
Director, CBI and recommended Shri Rakesh Asthana for
appointment as Special Director, CBI. He further submitted
that the CBI itself had moved the proposal on 06.07.2017 for
appointment of Shri Rakesh Asthana as a suitable candidate
to hold the post of Special Director, CBI. According to him,
Shri Rakesh Asthana was holding the post of Additional
Director, CBI before being appointed as Special Director, CBI
and had been supervising functions of 11 Zones, viz., STF
Zone, MDMA Zone, Delhi Zone, Lucknow Zone, Patna Zone,
EoZ-II Zone, Mumbai, EoZ-III Zone, Kolkata Zone, North East
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Zone, Chennai Zone & Chandigarh Zone. In the above
capacity, he is supervising the investigation/trial of a number
of scam cases including Augusta Westland Case, Ambulance
Scam Case, Kingfisher Cases, Hassan Ali Khan Case, Moin
Qureshi Case, J.P. Singh Bribery Case, Paramount Airways
Case, Coal Scam Cases, AHD and Bitumen Scam Cases of
Bihar and Jharkhand. He is also supervising a number of
Special Crime cases which were registered on the orders of
Courts or on the request of State Governments besides cases
against Ministers/officials of Delhi Government. He thus
submitted that no fault can be found in the recommendations
made by the Selection Committee. Respondent No. 1 had
rightly accepted the recommendation for appointment of Shri
Rakesh Asthana as Special Director, CBI.
12) We have given our thoughtful consideration to the
various pleas raised by learned counsel for the parties.
13) There cannot be any doubt that if the Statute provides for
consultation with any person before making recommendation
for appointment to any post, consultation with that person has
to be made. The question of giving primacy to the opinion
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expressed by the person with whom the consultation has to be
made depends upon various factors. If there is no Selection
Committee and the appointing authority is required to consult
with some other Constitutional/Statutory authority then the
question of giving primacy to the opinion expressed by the
person with whom the consultation is to be made exists.
14) However, in cases, where a Selection Committee has been
constituted which consists of high officials and consultation
has to be made with another person of the Department for
which recommendation for appointment is to be made, in that
event, the consultation is only a process of discussion which
has to be taken into consideration while making
recommendation by the Selection Committee. It cannot be
said to have a primacy.
15) In the Minutes of the Meeting of the Selection Committee
held on 21.10.2017, the Selection Committee had discussed
the note submitted by the Director, CBI and also discussed
the same with him as would be clear from the Minutes
reproduced hereinbelow:-
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“Item No. II: Induction of IPS officers as Special
Director, CBI.
The Agenda papers have been considered. The Director
CBI has furnished a Secret/Confidential letter ID No.
30/2017/VC(CVC) 152/1552 dated 21.10.2017 in the
meeting, enclosing an unsigned note on Sterling Biotech
Ltd. and related entities. It is mentioned by the
Director, CBI that the entries in the note refer, inter
alia, to one Shri Rakesh Asthana. The Committee
considered the note and the matter was also discussed
with the Director, CBI. Keeping in view that there is no
finding in these papers that the person mentioned
therein is the same person under consideration for
appointment and there is nothing about the veracity of
the contents of the document and the further fact that
the CBI itself moved the present proposal on 06.07.2017
wherein it has been categorically mentioned that Shri
Rakesh Asthana IPS (GJ:1984) is suitable to hold the
post of Special Director, CBI and no further verified
material has been brought on record, the Committee
decided to recommend him for appointment as Special
Director, CBI. The Committee has also kept in view the
fact that the Vigilance Commission does not take
cognizance of complaints received just on the verge of
appointments or promotions unless they are proved
misconducts. The Committee has also noted the
decisions of the Courts in respect of such documents.”
16) From a perusal of the aforesaid Minutes, we find as
under:-
(i) The Director, CBI had furnished a secret/confidential
letter dated 21.10.2017 enclosing an unsigned note on M/s
Sterling Biotech Ltd. and related entities and that the entries
in the note referred, inter alia, to one Shri Rakesh Asthana.
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(ii) The Committee had considered the note and the matter
was also discussed with the Director, CBI.
(iii) The Committee found that there are no findings in the
papers that the person mentioned therein is the same person
under consideration for appointment and there is nothing
about the veracity of the contents of the document.
(iv) The Committee further found the fact that the CBI itself
moved the present proposal on 06.07.2017 categorically
mentioning that Shri Rakesh Asthana IPS (GJ:1984) is
suitable to hold the post of Special Director, CBI.
(v) The Committee also held that no further verified material
has been brought on record and the Committee decided to
recommend the name of Shri Rakesh Asthana for appointment
as Special Director, CBI.
(vi) The Committee has also kept in view the fact that the
Vigilance Commission does not take cognizance of complaints
received just on the verge of appointments or promotions
unless they are proven misconducts.
(vii) The decision taken by the Selection Committee was
unanimous.
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17) Further, this Court, in Mahesh Chandra Gupta vs.
Union of India and Others (2009) 8 SCC 273 has highlighted
the fact that there is vital difference between judicial review
and merit review. Once there is consultation, the content of
that consultation is beyond the scope of judicial review though
lack of effective consultation could fall within the scope of
judicial review.
18) We cannot question the decision taken by the Selection
Committee which is unanimous and before taking the
decision, the Director, CBI, had participated in the discussions
and it is based on relevant materials and considerations.
Further, even in the FIR filed by the CBI, the name of Shri
Rakesh Asthana has not been mentioned at all. Thus, lodging
of FIR will not come in the way of considering Shri Rakesh
Asthana for the post of Special Director, after taking into
consideration his service record and work and experience.
From the Minutes of the Meeting (MoM) of the Selection
Committee, we find that the news items reported in the print
and electronic media that no decision was taken with respect
to the appointment on the post of Special Director, CBI in the
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meeting of the Selection Committee held on 21.10.2017 are
factually incorrect. Likewise, the statement of the Professor of
the University of London reported in the Indian Express
appears to be based on the newspaper reports which have
been found to be factually incorrect, and therefore, it has no
substance.
19) In view of the foregoing discussion, we are of the
considered opinion that the appointment of Shri Rakesh
Asthana – Respondent No. 2 herein to the post of Special
Director, CBI does not suffer from any illegality. The writ
petition fails and is dismissed.
……………………………………J.
(R.K. AGRAWAL)
…………….………………………J.
(ABHAY MANOHAR SAPRE)

NEW DELHI;
NOVEMBER 28, 2017.
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