Divested of all responsibilities and sent on leave last month, CBI Director Alok Verma told the Supreme Court Thursday that he had been appointed for a fixed tenure of two years and could not be transferred. He said the government’s October 23 decision to divest him of responsibilities amounted to a transfer. The Centre, on the other hand, maintained it had the powers to divest Verma of his responsibilities till completion of an enquiry against him.
Attorney General K K Venugopal told the bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph that the action did not amount to transfer so as to necessitate any reference to the selection committee comprising the Prime Minister, Leader of Opposition and Chief Justice of India.
The bench, meanwhile, made it clear it was not going into allegations and counter-allegations at this stage and would only look into the question of law on whether the government had the power to initiate action. It will hear the arguments next on December 5.
When senior advocate Kapil Sibal, appearing for Congress leader Mallikarjun Kharge sought to refer to the “allegations and counter-allegations”, CJI Gogoi said: “We are not going into those allegations at this stage. We are only treating it as a proposition of law.”
Senior advocate Fali S Nariman, representing Verma, said the government could not touch the Director without the prior sanction of the committee. At this, Venugopal told the bench that the committee only had the task of “selection” of suitable candidates for the post of Director and it was the job of the government to “appoint” one of them.
“Government has all control over the actual appointee for the simple reason that he has already been appointed. Therefore, requiring the committee to decide on everything about the appointee does not arise,” Venugopal said.
Referring to the bitter fight between Verma and CBI Special Director Rakesh Asthana which culminated in the October 23 order divesting both of their charges, Venugopal said: “The CBI was being disgraced.”
He said Verma was still the CBI Director and continued to enjoy the same facilities including staff and residence and “therefore, can he claim he is transferred?”
The bench then referred the Attorney General to the provision in the Central Vigilance Commission (CVC) Act, 2003 which states that the CVC’s power of superintendence over the CBI is limited to investigation of cases under the Prevention of Corruption Act.
CJI Gogoi said the CVC’s order were under these sections and “pursuant to this, there is a Department of Personnel and Training (DoPT) order”. He asked “should this order have come under Section 4(2) (of The Delhi Special Police Establishment Act, 1946)”. The section deals with the terms and conditions of service of the CBI Director.
To this, Venugopal replied in the affirmative. The CJI asked whether the consequential order divesting the Director of his powers should have come from the government. Venugopal said the CVC’s powers were activated by Asthana’s complaint to the Cabinet Secretary.
Nariman told the bench to read the divesting of Verma’s responsibilities as amounting to transfer. He said the CVC Act made it clear that the Director cannot be transferred without the approval of the committee.
“What was meant that he shall not go out of office without the approval of the committee. Verma was appointed after consultation with the committee.The position in law is of fixed tenure. So, you cannot transfer him, even if that benefits him, without the committee’s sanction,” he said, adding that the government order was to “clip his wings”.
With Nariman insisting that the government should not have acted without the consent of the committee, Justice Joseph sought to know “what if he is caught red-handed taking bribe?”. Nariman replied that the government will have to inform the committee and come to court. “But you cannot do it ex-post facto,” he said, and asked “if not, what is the independence contemplated”.
The CJI said the bench was yet to take a call on whether or not to go into the CVC report in which case it would seek responses from the parties.