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Sushma dissent ignored in CVC appointment


karira

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Many times when there are efforts to arrive at a consensus on some issues are made, we tend to think that it is unnecessary and in a democracy everything should go as per the majority. This is not correct as shown inthe above episode. In fact it is always better to arrive at a consensus, even if it takes some time, rather than bulldozing with majority.

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Taurus, most of the laws/acts which prescribe a committee to select a person (like the CVC Act or even the RTI Act), mentions only a committee.

But they are silent whether it should be a unanimous decision or a majority decision of that committee.

For example, in a 3 member committee which consists of the PM, one Minister and the leader of Opp., it is a fait accompli that the PM and the Minister will be on the same side. They will never disagree.

Therefore a "majority decision" in this case does not have any meaning.

 

The question which courts have to answer (there is a case pending in AP HIgh Court against appointment of AP CIC) is whether that selection has to be unanimous or not ?

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Atul Patankar

As reported by Sujoy Dhar at indiablooms.com on January 28, 2011

 

New Delhi, Jan 28 (IBNS) The file of Chief Vigilance Commissioner (CVC) P J Thomas shows he had not mentioned the controversy surrounding his role in the Kerala edible oil scam of the 1990s, according to the documents in possession of RTI activist Subhash Chandra Agrawal.

 

Subhash Chandra Agrawal, a noted RTI activist, got hold of the bio-data of the CVC and his appointment details through an RTI petition.

 

Speaking to lBNS, Agarwal said the documents record Bharatiya Janata Party (BJP) leader Sushma Swaraj's dissent but did not specify why she opposed the appointment of Thomas.

 

"If the majority decision is all that matters then what is the point in having an Opposition leader in the panel," Agrawal asked.

 

Agrawal, however, got access to a part of the documents since rest were with the Supreme Court when he filed the RTI before the government.

 

"I would however say there is no faith of people in the political community. Even BJP in its time did not do much to make CBI (Central Bureau of Investigation) autonomous. Did BJP change the rule at their time?" he asked.

 

Meanwhile, India’s main opposition BJP on Friday slammed Prime Minister Manmohan Singh over appointment of P J Thomas as Chief Vigilance Commissioner (CVC).

 

“Now in the case of CVC appointment the falsehood of the Govt. got exposed,” said BJP National spokesperson Prakash Javadekar.

 

“It seems that the façade of cleanliness of the PM is falling apart. Every second day the UPA Govt. is getting embroiled in a new damning indictment with regard to corruption and open loot of public money,” he said.

 

The days of tainted CVC P J Thomas as the chief corruption watchdog of the country might be numbered with political activities suggesting he might be asked to step down in the face of a gathering political storm that now reaches the doorsteps of the Prime Minister.

 

The controversy has snowballed into a major embarrassment for Prime Minister Manmohan Singh himself after Bharatiya Janata Party (BJP) leader Sushma Swaraj announced to move Supreme Court and prove that the government panel that included her and the Prime Minister was aware of the CVC's tainted past before his appointment.

 

With the Supreme Court placing the issue on a fast burner, the government is said to be hoping that the CVC Thomas will spare it further embarrassment and file in his resignation.

 

On Thursday, the Prime Minister’s office once again found itself in a political cesspool as the BJP launched a renewed onslaught on the government challenging its submission before the Supreme Court on the appointment of the country’s graft watchdog as "untrue".

 

Opposition leader Sushma Swaraj, fresh off her spat with the ruling parties over her foiled political rally in Kashmir on Republic Day, Thursday vowed to file an affidavit to the Supreme Court on the appointment of a tainted person as the Chief Vigilance Commissioner.

 

Claiming that the government’s submission through Attorney General was "absolutely untrue", the BJP leader said, “I personally brought this to the notice of the Prime Minister and the Home Minister...now I have decided to file an affidavit before the Supreme Court.”

 

A Public Interest Litigation (PIL) had challenged Thomas’ appointment as the CVC pointing to an oil import case against him, though Thomas has pleaded innocence in an affidavit before the Supreme Court.

 

In 1991-92, Thomas, as the Food Secretary in Kerala, had allegedly allowed the import of Palmolein or edible oil from Malaysia at prices higher than the market rate.

 

He also allegedly covered up the 2G Spectrum allocation scam as the Telecom Secretary.

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karira

As reported by PTI in business-standard.com on 03 March 2011:

State govts liable for exec info: DoPT on CVC issue

 

State govts liable for exec info: DoPT on CVC issue

 

The Centre has put the onus on state governments and the officer concerned for "correctness of information" in official records in the wake of allegations of misrepresentation of facts before a high-level panel that selected P J Thomas as Central Vigilance Commissioner (CVC).

 

The Department of Personnel and Training (DoPT), in an RTI reply, has said that Executive Record (ER) sheet maintained by it is prepared on the basis of the information provided by the state government.

 

The DoPT replied in the affirmative when asked in the RTI question by activist S C Agarwal whether Thomas, a former IAS officer of Kerala cadre, was named as an accused in a supplementary FIR filed by the Kerala government with reference to alleged corruption in the case of palmolein oil imports in 1992.

 

Thomas resigned today from the post of CVC after the Supreme Court quashed his appointment. The RTI reply was made public before the judgement.

 

In response to a question whether in the Palmolein Oil import case P J Thomas, named as an accused, was omitted from his bio-data from the ER placed before the selection committee, the department said, "Bio data as reflected in the ER sheet is generated on the basis of inputs provided by the state government."

 

"The responsibility of the correctness of information available on the ER sheet lies with the state government where the officer is posted and the individual officer concerned," the DoPT further said.

 

The ER sheet, which was placed before the CVC selection committee comprising Prime Minister Manmohan Singh, Home Minister P Chidambaram and Leader of opposition in Lok Sabha Sushma Swaraj, did not mention the pending palmolein case against Thomas who was appointed the CVC on September 7, 2010.

 

Swaraj, who had opposed the appointment of Thomas, had alleged that the files circulated before the selection committee did not make a mention about the Palmolein case in which he is listed as an accused.

 

The department in an RTI reply to Agrawal said it has been "time and again writing to the state governments to ensure correctness of the information available on the ER sheet".

 

The department provided a letter dated February 10, 2011, eight days after the RTI application was filed, addressed to all Chief Secretaries which states that responsibility of updating ER sheets lies with the state government and the officer concerned.

 

"The updation of entries in the ER sheets is done on the basis of copies of posting orders, joining reports, relieving orders etc. Issued by the state governments or government of India, as the case may be. At times due to non-receipt of various orders, the ER sheets remain un-updated," it said.

 

The department asked the Secretaries of all the state governments and Union Territories to bring out discrepancies in the ER sheets to its notice on regular basis.

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We have been discussing whether the recommendation/decision of the Committee should be unanimous or not. But the Supreme Court, in its judgment today has not discussed this issue at all. It has held that the recommendation is non-est in the eyes of the law. That is, it does not exist in the eyes of law. It is so because the Committee failed to keep in mind the institutional integrity of the institution of CVC while making its recommendations. The Court has held that the Committee has merely gone by the clearance given by the CVC without assessing whether the individual will be able to function as CVC independently without fear or favour, as envisaged in the CVC Act.

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Regarding the argument that the recommendation of the Committee should be unanimous the Supreme Court has observed as follows:

 

We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a “veto right” on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. Under the proviso to Section 4(1) Parliament has put its faith in the High Powered Committee consisting of the Prime Minister, the minister for Home Affairs and the Leader of the Opposition in the House of the People. It is presumed that such High Powered Committee entrusted with wide discretion to make a choice will exercise its powers in accordance with the 2003 Act, objectively and in a fair and reasonable manner. It is well settled that mere conferment of wide discretionary powers per se will not violate

the doctrine of reasonableness or equality. The 2003 Act is enacted with the intention that such High Powered Committee will act in a bipartisan manner and shall perform its statutory duties keeping in view the larger national interest. Each of the Members is presumed by the legislature to act in public interest. On the other hand, if veto power is given to one of the three Members, the working of the Act would become unworkable. One more aspect needs to be mentioned. Under Section 4(2) of the 2003 Act it has been stipulated that the vacancy in the Committee shall not invalidate the appointment. This provision militates against the argument of the petitioner that the recommendation under Section 4 has to be unanimous. Before concluding, we would like to quote the observations from the judgment in Grindley and Another v. Barker, 1 Bos. & Pul. 229, which reads as under :

 

“I think it is now pretty well established, that where a number of persons are entrusted with the powers not of mere private confidence, but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.

 

Similarly, we would like to quote Halsbury’s Laws of England (4th Ed. Re-issue), on this aspect, which states as under:

 

“Where a power of a public nature is committed to several persons, in the absence

of statutory provision or implication to the contrary the act of the majority is binding

upon the minority.”

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karira

As reported in indianexpress.com on 12 June 2011:

http://www.indianexpress.com/news/thomas-was-not-cleared-to-serve-on-central-deputation/802521/0

 

'Thomas was not cleared to serve on central deputation'

 

After denying any communique from the Kerala government on the pending vigilance case against former CVC PJ Thomas, the Centre has now made public a letter from the state which says he was not cleared to serve on central deputation.

The Central Public Information Officer of the Department of Personnel and Training in an RTI response had earlier said no such letter was with them. But during the first appeal, Deputy Secretary R K Mittal overturned the previous reply.

 

"After going through the relevant papers and official records, it appears that the CPIO was not able to link up the letter with the file concerned. Accordingly, CPIO is directed to refer to file...and provide the relevant information," Mittal said in his order.

 

After the decision, the letter dated March 11, 2008 from the chief secretary of Kerala objecting to Thomas' deputation to the Centre was provided to activist S C Agrawal.

 

The communique has punctured the claims of DoPT that it was unaware about the ongoing vigilance case against Thomas while short-listing his name for the post of anti-corruption watchdog Central Vigilance Commissioner.

 

"P J Thomas, IAS, Chief Secretary to Government (Kerala), had applied for Central Deputation in 1988, but was not selected for appointment. Subsequently after 1992, he had expressed his willingness for central deputation, but was not considered because of ongoing vigilance enquiry/case. Because of this he was not considered so far. The case has not been finalised yet. I may inform tha Thomas could not work at the Centre as he was not recommended for the same by the state government," the letter from the chief secretary said.

 

60-year-old Thomas, a 1973-batch IAS officer of the Kerala cadre, was appointed chief secretary of the state in 2007 before moving to the Centre in 2009 as secretary, parliamentary affairs, telecom secretary and finally central vigilance commissioner.

 

The government had appointed Thomas as CVC despite dissension by Leader of Opposition Sushma Swaraj, who was one of the three-members in the selection committee comprising Prime Minister Manmohan Singh and Home Minister P Chidambaram.

 

The apex court had later quashed the appointment of Thomas as CVC holding that the recommendation made by the panel, headed by the Prime Minister, did not consider the relevant material and, therefore, its advice "does not exist in law".

 

The court had scrapped his appointment as CVC on a PIL by Center for Public Interest Litigation (CPIL) and retired bureaucrats and police officials, including former Chief Election Commissioner J M Lyngdoh, challenging his appointment in view of a criminal case pending against him.

 

Later, the prime minister had said he was unaware of the pending case against Thomas and virtually blamed Chavan, who was MoS (Personnel) at that time, for the fiasco, contending that the key information was not provided.

 

Reacting to it, Chavan said vigilance clearance was the responsibility of the state government. He had also said the central deputation of Thomas was on the basis of documents provided by the Kerala government.

 

This argument was termed "baseless" by the then Chief Minister of Kerala V S Achuthanandan who said the Centre was duly informed about pending vigilance case against Thomas in 2008.

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