ARUN KUMAR AGRAWAL v. UNION OF INDIA & ORS

Citation: [2014] 3 S.C.R. 861

Court: Supreme Court of India

Bench: S.S. NIJJAR, PINAKI CHANDRA GHOSE

Case summary

ARUN KUMAR AGRAWAL v. UNION OF INDIA & ORS.pdf

Judgment text

[2014} 3 S. C. R. 861 ARUN KUMAR AGRAWAL v. UNION OF INDIA & ORS. (Writ Petition (Civil) No. 374 of 2012) NOVEMBER 01, 2013 [SURINDER SINGH NIJJAR AND PINAKI CHANDRA GHOSE, JJ] CONSTITUTION OF IND/A, 1950: Art. 32 - Writ petition challenging appointment of Chairman, SEBI - Held: Section 4(5) of SEBI Act inter alia stipulates that Chairman and other Members of SEBI shall be persons of "ability, integrity and standing who have shown capacity in dealing with problems relating to securities market" 0 - Thus, statutorily, a person cannot be appointed as Chairman/Member of SEBI unless he or she is a person of high integrity - Therefore, selection and appointment of Chairman, SEBI could be challenged before Supreme Court in a writ petition under Art. 32 of the Constitution on the ground that he does not satisfy the statutory requirements of a person of high integrity - Securities and Exchange BoarrJ of India Act, 1992 - s. 4(5). SECURITIES AND EXCHANGE BOARD OF /NOIA ACT, 1992: s.

4(5) - Appointment of Chairman of SEBI - Challenged on the ground of integrity, ma/a fides, conspiracy etc. - Held: SEBI is an institution of high integrity -- The functions performed by it are such that any malfunctioning in performance of such functions can disturb economy of the country - Therefore, only persons of high integrity would be eligible to be appointed as Chairman/Member of SEBI - This is imperative - There is no substance in the alleged irregularities regarding deputation of fourth respondent, the alleged misstatement/non-disclosure about his pay scale/ sanctioned emoluments as disclosed -- There is nothing which would render him a person of not high integrity - SEBI (Terms and Conditions of Service and Members) Rules, 1992 - r. 3(5) -- /AS Cadre Rules - rr. 6(2)(i) and 6(2)(ii).

Appointment of Chairman, SEBI - Allegation of ma/a fide - Held: If the a/legations of ma/a fide are established, it would vitiate the selection procedure, recommendation and appointment of fourth respondent as Chairman, SEBI - But, burden of proving the allegations of ma/a fide. would lie very heavily on petitioner - It was incumbent on petitioner not only to make specific allegations, but also to produce very strong evidence to lead to a clear conclusion that the selection was actuated by ma/a fide - Petitioner has not made out a case of ma/a fide to vitiate the selection process and appointment of fourth respondent as Chairman, SEBI.

Appointment of Chairman, SEBI - Allegation of conspiracy - Held: The charge of conspiracy has to be taken seriously as it involves commission of very serious criminal offence uls 120-B, /PC - Such a charge of criminal intent and conduct had to be clearly pleaded and established by evidence of very high degree of probative value - No notice of such allegations can be taken based only on pure conjectures, speculations and interpretation of notings in the official files -Appointment of fourth respondent is strictly in conformity with the procedure prescribed - Petitioner has not placed on record any material to establish that any conspiracy was hatched to ensure the selection of fourth respondent as Chairman, SEBI - All India Services (Deathcum-Retirement Benefits) Rules, 1958 - rr. 16 and 26. PUBLIC INTEREST LIT/GATION: Writ petition challenging appointment of Chairman, SEBI - Held: In the instant case, petitioner has unjustifiably attacked ORS.

integrity of the entire selection process - The petition does not satisfy the test of utmost good faith which is required to maintain public interest litigation -- On facts, petitioner could not justify invoking the jurisdiction of the Court under Art. 32. The instant writ petition was filed by the petitioner 8 purporting to be in public interest, challenging the appointment of respondent no. 4 as Chairman of the Securities Exchange Board of India (SEBI) on the grounds: (a) that respondent no. 4 failed to fulfill one of the eligibility condition as laid down in sub-s. (5) of s. 4 of the Securities and Exchange Board of India Act, 1992 (SEBI Act), as well as the qualification contained in Government communication, which required that the Chairman should be a person of high integrity; (b) that appointment of respondent No.

4 was the result of manipulation, misrepresentation and suppression of vital material before the Search-cum-Selection Committee and the Appointment Committee of the Cabinet 'ACC'; (c) that the appointment of respondent No. 4, was mala fide; and {d) that a conspiracy was hatched to ensure selection of respondent no. 4 as Chairman, SEBI. The petitioner alleged that respondent no. 4 was wrongly sent on deputation to Unit Trust of India Asset Management Company Ltd. (UTI AMC) and further, the deputation was in violation of the policy of not allowing deputation to an officer who had overseen the organisation to which he was being deputed; that there was suppression of material facts relating to remuneration of respondent no. 4 as CMD, UTI AMC before the Search-cum-Selection Committee and the ACC. As regards the mala tides, it was stated by the petitioner, that the earlier Chairman of SEBI was denied extension in tenure and in order to facilitate the selection of respondent no.

4, there was illegal and arbitrary change in composition of Search-cum-Selection Committee. On behalf of the respondents, besides contesting the petition on merits, a preliminary objection was raised as to the maintainability of the writ petition as the same was alleged not to have been filed in public interest, but as a surrogate litigation on behalf of an individual who was anxious to continue as Chairman, SEBI; and that the writ petition did not disclose all the facts relevant for adjudication of the issues raised. Dismissing the writ petition, the Court HELD: 1. 1 SEBI is an institution of high integrity. Therefore, the Chairman of SEBI has to be a person of high integrity. This is imperative. The wide sweep of the powers of SEBI leaves no manner of doubt that it is the supreme authority for the control and regulations and orderly development of the securities market in India.

It would not be mere rhetoric to state that in this era of globalisation, the importance of the functions performed by SEBI are of paramount importance to the well being of the economic health of the nation. [para 29) [897-B, F- H; 898-A] Sahara India Real Estate Corporation Ltd. & Ors. Vs. Securities and Exchange Board of India & Anr. 2012 (12) SCR 1 = 2013 (1) SCC 1 • referred to. 1. 2 The functions performed by SEBI are such that any malfunctioning in the performance of such functions can disturb the economy of the country. Therefore, only persons of high integrity would be eligible to be appointed as Chairman/Member of the SEBI. Section 4(5) of SEBI Act inter alia stipulates that the Chairman and other Members of the SEBI shall be persons of "ability, integrity and standing who have shown capacity in dealing wlt. h problems relating to securities market.

" Statutorily, therefQre, a person cannot be appointed as Chairman/Member of the SEBI unless he or she is a person of high integrity. [para 30) [899-B-E] ORS. 1. 3 Therefore, selection and appointment of respondent No. 4 could be challenged before this Court in a writ petition under Art. 32 of the Constitution of India on the ground that he does not satisfy the statutory requirements of a person of high integrity. [para 30) [899- E-F] Centre for PIL & Anr. Vs. Union of India & Anr. 2011 (4) SCR 445 = 2011 (4) SCC 1 - referred to. DEPUTATION : Was it irregular, illegal or vitiated by colourable exercise of power? 2. 1 It is a matter of record that respondent No. 4 was on deputation with UTI AMC since the year 2005. His deputation was duly approved by the Ministry of Finance, DOPT and the Government of Bihar, wherever applicable. o Respondent No. 4 was first appointed as CEO, UTI AMC by order dated 30. 10. 2005. He was initially on deputation under r. 6(2)(ii) and subsequently under r.

6(2)(i) of the IAS Cadre Rules. The terms and conditions of service of respondent No. 4 at UTI AMC were settled on 16. 4. 2007. This was in conformity with the letter dated 31. 10. 2005 written by the DOPT accepting the request made by the Government of Bihar in its letter dated 28. 10. 2005 for approval of deputation of respondent No. 4 with UTI AMC for a period of two years under r. 6(2)(ii) of IAS Cadre Rules. The letter further indicated that terms and conditions applicable in the said deputation were under examination and would be communicated shortly. The deputation was converted from r. 6(2)(ii) to r. 6(2)(i), upon clarification of the applicability of the appropriate rule. [para 35) [901-D-H] 2. 2 Therefore, it cannot be said that respondent No. 4 was in any manner responsible for being sent on deputation initially under r. 6(2)(ii) and subsequently under r. 6(2)(i) or that his deputation under r. 6(2)(ii) was approved in colourable exercise of power.

[para 35] (902- B-C, D] "False Declaration in Form L" 2. 3 A perusal of Office Memorandum dated 1. 5. 2008 sent by the Department of Economic Affairs in reference to the letter sent by DoP&T seeking comments of DEA under r. 26 (3) of All India Services (Death-cum-Retirement Benefits) Rules, 1958 would show that necessary facts relating to the service of respondent No. 4 in the six years prior to the response dated 1. 5. 2008 had been faithfully set out. Therefore, it cannot be said that the petmoner has made any false declaration in 'Form L', Clause 9 read with r. 26(3) of All India Services (Death-cum-Retirement Benefits) Rules, 1958, while working in his previous job as Chairman, UTI AMC. [para 36-37] (902-E-F; 904-H; 905-A] 2. 4 The respondents have rightly pointed out that respondent No. 4 was on deputation in UTI AMC when he filled up Form 'L'. At that time, he held lien on the post of Additional Secretary, Government of India.

His application for voluntary retirement had been processed. He was, however, required to obtain approval under r. 26 for commercial employment-post retirement. Sr. No. 5 of Form 'L' requires the person seeking approval to state the pay scale of the post and pay drawn by the Officer at the time of retirement. Undoubtedly, respondent No. 4 was drawing the pay scale of Rs. 22400-525-24500. He also stated his pay to be Rs. 23,450/-. There is no legal infirmity in the said statement by respondent No. 4. It is a settled proposition of law that deputationist would hold the lien in the parent department till he is absorbed on any post. [para 38] [905-E-H] State of Rajasthan & Anr. Vs. S. N. Tiwari & Ors. 2009 (4) SCR 448 =2009 (4) SCC 700; and Triveni Shankar Saxena Vs. State of UP. &Ors. 1991 (3) Suppl. SCR 534 = 1992 (1) Suppl. SCC 524 - referred to. ORS. 2. 5 In response to Column No. 7 Form L, respondent No. 4 has quite clearly mentioned that he has been offered a fixed pay of Rs. 1.

00 crore per annum alongwith performance related payment and other usual perks. It must be noticed that respondent No. 4 had sought retirement from the IAS w. e. f. 15. 5. 2008 to enable him to join UTI AMC on a regular basis as its CMD. Therefore, it cannot be said that at the time when he filled the Form for seeking VRS, respondent No. 4 was not drawing the pay scale stated by him. The Board of UTI AMC by resolution dated 12. 4. 2008 approved that the CMD can draw revised compensation w. e. f. 27. 12. 2006. Till that date, he was still placed in the scale of Additional Secretary, Government of India. The fact that emoluments were paid to respondent No. 4 w. e. f. 27. 12. 2006 would not affect the statement made by respondent No. 4 in Form 0 'L' filled on 15. 4. 2008. Therefore, it cannot be said that respondent No. 4 had deliberately suppressed the information regarding his salary. [para 40] [906-F-G; 907- A-D] 2. 6 Respondent No.

4 in his capacity as a Joint Secretar~/Additional Secretary to Government of India was required to state whether he was privy to any sensitive information in his official capacity. The information would be required if the Officer was in receipt of information whilst working as Officer in the Government and is aware of the sensitive proposals or other decisions which are not otherwise known to others and which can be used for giving undue advantage to the Organization in which he is seeking a future position. In the case of respondent No. 4, he was already working as CMD-cum-CEO in the UTI AMC. Therefore, there was no question of respondent No. 4 having been privy to any sensitive information with regard to UTI AMC at the time when he was posted as Joint Secretary/Additional Secretary in the Government of India. In fact, respondent No. 4 in the same Form No. Lat Sr. No. 7-C had stated that he was earlier working as Director in UTI AMC and was appointed as CEO cum MD from 3. 11.

2005 and CMD from 13. 1. 2006. The declaration is in fact in conformity with the 3rd proviso to Rule 26 of All India Service (DCRB) Rules which envisages that an Officer in deputation of an Organization under Cadre rules can be absorbed in the same Organization post VRS. The word "Service" in Sr. No. 9(ii) in Form L is in contrast to the work of proposed Organization. [para 41] [907-E-H; 908-A-B] 2. 7 It can also not be said that the deputation was in violation of policy of not allowing deputation to an Officer who has over-seen the Organization to which he was being deputed. Respondent No. 4 had no role to play in the grant of approval of deputation, once he fully disclosed that he had been working as Joint Secretary Banking. It can also not be accepted that whilst respondent No. 4 worked as Joint Secretary Banking he can be said to have over-seen the Organization of UTI AMC. [para 42] [908-C-D] 2. 8 UTI AMC cannot be said to be a Government company.

It was for this very reason that respondent No. 4 had to make a request for VRS to seek reemployment in a Commercial Organization. The Central Government transferred its entire share holding in UTI AMC to Life Insurance Corporation, Punjab National Bank, Bank of Baroda and SBI. The entire consideration for the aforesaid transfer was received by the Central Government. Therefore, it becomes quite evident that UTI AMC is not a "Government Company" u/s 617 of the Companies Act. In the affidavit filed, this has been the consistent stand taken by the Central Government and the CAG in various writ petitions filed by the petitioner. In a company like the UTI AMC, it is for the shareholder on the Board to decide what process to follow and whom ORS. to appoint. When the selected candidate is not government employee having a lien on a government job, then the government would have nothing to do with the selection process. [para 43] [908-G-H; 909-A-E] 2.

9 As regards the grievance of the petitioner that 8 respondent No. 4 had made a mis-statement in Column No. 7F of Form 'L' whilst giving information as to whether the post which has been offered to him was advertised, it is significant to note that in reply to the said question, respondent No. 4 categorically stated that such higherleve. 1 posts are generally not advertised. The statement made by respondent No. 4 that such higher posts are generally not advertised, cannot be said to be misleading or a false statement. Keeping in mind the contribution made by him and the needs of the Company, the shareholders had made the offer to him. In any event, it would be the decision to be taken by the Board of Directors. Respondent No. 4 would clearly have no say in the matter. [para 45-46] [910-D-E; 911-A-B, E] 2.

10 The Government of India never adopted the policy of not sending IAS Officer on deputation to UTI AMC and informed the Parliament in its 3rd action taken report submitted in December, 2004. The decision to grant approval of commercial employment post retirement under r. 26 was taken by the Government of India. The post was filled up by Board of Directors and shareholders of UTI AMC. It was entirely for them to adopt such policy of appointment as they deem fit. Respondent No. 4 has complied with all the conditions of deputation, and as such, there is nothing which would render him a person of not high integrity. The Appointment Committee of the Cabinet (ACC) had approved the extension of tenure of respondent no. 4 as CMD UTI AMC till 31. 5. 2008. [para 48] [914-B-D] 2. 11 Therefore, there is no substance in the alleged irregularities regarding deputation of respondent No.

4, the alleged misstatement/non-disclosure about his pay scale/sanctioned emoluments as disclosed in the letter dated 16. 4. 2007; the alleged appointment of respondent No. 4 so as to be contrary to recommendations made by the AAPTE Committee on July, 2007; the alleged false declaration under r. 26(3)(ii) of AIS Death-cum-Retirement Rules that in the last three years of his career he had not been privy to sensitive and strategic information of UTI AMC; the alleged false statement about advertisement of higher-level posts. [para 49] [914-E-G] Was the recommendation and appointment of respondent no. 4 as Chairman, SEBI vitiated by MALA FIDE exercise of powers? 3. 1 Undoubtedly, if the allegations of mala fide are established, it would vitiate the selection procedure, recommendation and the appointment of respondent no. 4 as the Chairman, SEBI. But the burden of proving the allegations of mala fide would lie very heavily on the petitioner.

It was incumbent on the petitioner not only to make specific allegations, but to produce very strong evidence to lead to a clear conclusion that the selection was actuated by mala fide. [para 50 and 61) [914-H; 915- A-B; 923-E] Purushottam Kumar Jha Vs. State of Jharkhand & Ors. , 2006 (1) Suppl. SCR 215 =2006 (9) SCC 458; Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, 2003 (2) SCR 387 = 2003 (4) SCC 579; and Saradamani Kandappan Vs. S. Rajalakshmi & Ors. 2011 (8) SCR 874 = 2011 (12) SCC 18; S. Partap Singh Vs. State of Punjab 1964 SCR 733 and E. P. Royappa Vs. State of T. N. 1974 (2) SCR 348 =1974 (4) SCC 3 - referred to. 3. 2 This Court holds that there was no mala fides involved in denying the extension to the earlier Chairman. It has been rightly pointed out that no illegality was committed in making the amendment in the rules ORS. pertaining to the selection of Chairman/WTM of SEBI. It is borne out from the record that prior to 23. 7.

2009, there was no rule on the procedure to be followed in the selection of Chairman/whole time Member of SEBI. The selection procedure for the Chairman of SEBI in 2008 was approved by the Finance Minister on 2. 11. 2007. This procedure envisaged that the selection has to be made on the recommendation of the high powered Search Committee. The composition of the Search Committee was changed on the orders of the Finance Minister. It has also been pointed out that the amendment of the rules had no relevance to the consideration of recommendation of respondent no. 4 to be appointed as Chairman of the SEBI. [para 54-55) [916-F; 917-F-H; 918-A] 3. 3 The amendment in r. 3 of the SEBI (Terms and Conditions of Service and Members) Rules, 1992 was to provide for more participation by the expert members. Therefore, sub-r.

(5) of the aforesaid rules was incorporated which requires that recommendation of Search-cum-Selection Committee will consist of Cabinet Secretary, Department of Economic Affairs, Chairman, SEBI for selection of WTM and two eminent expert from relevant field. The record indicates that respondent No. 4 was unanimously placed at Sr. No. 1 by the Search-cum- Selection Committee. [para 55) [918-C-D, G) 3. 4 The petitioner has falsely contended that rules concerning the constitution of Search-cum-Selection Committee amended through notification dated 7. 10. 2010 were to ensure the selection of respondent no. 4. The rules were amended in exercise of the powers conferred on the Finance Minister u/s 29 of the SEBI Act. The said notification issued by the Finance Ministry has not been challenged by the petitioner. It is also significant to note that prior to the amendment, the procedure for selection of Chairman, SEBI was determined by the Finance Minister.

From perusal of the entire record, it cannot be (2014] 3 S. C. R. said that the petitioner has made out a case of mala fide to vitiate the proceedings of the Search-cum-Selection Committee. [para 56] [919-8-D] 3. 5 Applications for filling the post of Chairman were invited on 10. 9. 2010. Respondent no. 4 did not apply in 8 response to the said invitation. Out of the 19 applicants, in the first meeting of the Committee held on 2. 11. 2010, five were short listed. In addition, the Search-cum- Selection Committee also decided to invite respondent no. 4 for interaction, who at the relevant time, was CMD, UTI AMC. The Search-cum-Selection Committee based on the qualification, experience and personal interaction with the short listed candidates, recommended the names of respondent no. 4 and another person in that order of merit, for being considered for appointment as Chairman SE81. There is no illegality in the procedure adopted by the Search-cum-Selection Committee.

The Finance Minister proposed the appointment of respondent no. 4 as Chairman, SE81, for an initial period of three years from the date he resumes the charge or till he attain the age of 65 years, whichever is earlier. The proposal was sent to the ACC on the express approval of the then Finance Minister. It is therefore evident that respondent no. 4 had not role to play in the whole procedure except for accepting the invitation of the Search-cum-Selection Committee for interaction. [para 56-57] [919-8-C; 920-C- H; 921-A] 4. 1 The charge of conspiracy has to be taken seriously as it involves the commission of very serious criminal offence u/s 120-8 of the IPC. Such a charge of criminal intent and conduct had to be clearly pleaded and established by evidence of very high degree of probative value. No notice of such allegations can be taken based only on pure conjectures, speculations and interpretation of notings in the official files. [para 60] [923-C-D] ARUN KUMAR AGRAWAL v.

UNION OF INDI~ & 873 ORS. 4. 2 The appointment of respondent no. 4 is strictly in conformity with the procedure prescribed by service rules, i. e, rr. 16 and 26 of the AIS (DCRB) Rules, 1958. The official record discloses that the Chairman, SEBI is appointed by the Central Government by following an established process_ by the ACC headed by the Prime Minister. This is done on the basis of Search-cum- Selection Committee of the Government of India. The opinion of other independent arid reputed experts in the field of Economics, Finance and Management is also taicen through an institutional mechanism approved by the DOPT. The petitioner has not placed on record any material to establish that any conspiracy was hatched to ensure the selection of respondent No. 4. [para 61-62] {923-F-H; 924-E-F] .. State of Madhya Pradesh Vs. Narmada Bachao Ando/an & Anr. 2011 (6) SCR 443 =2011 (7) SCC 639; and K. D. Sharma Vs. Steel Authority of India Limited & Ors.

2008 (10) SCR 454 = 2008 (12) SCC 481 - referred to. 5. As regards the maintainability of the writ petition as a public interest litigation, the petitioner has unjustifiably attacked the integrity of the entire selection process. The petition does not satisfy the test of utmost good faith which is required to maintain public interest litigation. In the facts of the instant case, the petitioner cannnot justify invoking the jurisdiction of this Court under Art. 32 of the Constitution of India. [para 63] [926- H; 927-A, D, E-F] Case Law Reference: 2011 (4) SCR 445 referred to para 13 2011 (6) SCR 443 referred to para 26 . 2008 (10) SCR 454 referred to para 26 2012 (12) SCR 1 referred to Para 29 2009 (4) SCR 448 referred to Para 39 1991 (3) Suppl. SCR 534 referred to Para 39 2006 (1) Suppl.

SCR 215 referred to Para 50 2003 (2) SCR 387 referred to Para 50 2011 (8) SCR 874 referred to Para 50 964 SCR 733 referred to Para 51 1974 (2) SCR 348 referred to Para 51 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 374 of 2012. Under Article 32 of the Constitution of India. Goolam E. Vahanvati, AG, Mohan Parasaran, SG, Paras Kuhad, ASG, Harish Salve, Altaf Ahmed, Harish N. Salve, Prashant Bhushan, Rohit Kumar Singh, Prashant Kumar, Anurag Sharma, Joseph Pookkatt (for Ap & J Chambers), Rupesh Kumar, Jitin Chaturvedi, Shalaj Mridul, Sushma Suri, Rajesh lnamdar, Saniya Hasani, Suruchi Suri, Devdatt Kamat, Chanchal Kumar Ganguli, Bhargava V. Desai, Shreyas Mehrotra, Gopal Singh, Manish Kumar, Chandan Kumar, T. A. Khan, Syed Tanweer Ahmed, B. V. Bairam Das for the appearing Parties. The Judgment of the Court was delivered by SURINDER SINGH NIJJAR, J. 1. This writ petition has been filed by one Mr.

Arun Kumar Agrawal under Article 32 of the Constitution of India; seeks the issuance of a writ of quo warranto or any other direction against Mr. U. K. Sinha, Chairman of the Securities and Exchange Board of India (hereinafter referred to as 'SEBI') and his consequential removal from the post of Chairman. 2. Stated concisely, the petitioner challenges the appointment of respondent No. 4 on the following grounds :- ORS. [SURINDER SINGH NIJJAR, J] (a) Mr. Sinha failed to fulfill one of the eligibility condition as laid down in sub-section (5) of Section 4 of the Securities and Exchange Board of India Act, 1992 (hereinafter referred to as 'SEBI Act'), as well as the qualification contained in Government communication, which required that the Chairman shall be a person of high integrity. (b) The appointment of respondent No.

4 is the result of manipulation, misrepresentation and suppression of vital material before the Searchcum-Selection Committee and the Appointment Committee of t:;e Cabinet (hereinafter referred to as 'ACC'). (c) The appointment of respondent No. 4, a Chairman of SEBI, is mala fide. 3. Mr. Prashant Bhushan, learned counsel appearing for the petitioner, has made detailed submissions with regard to the manipulations and the maneuvers indulged in by the petitioner with the active connivance of some other persons to successfully mislead the Search Committee as well as the ACC.

He has highlighted that the petitioner does not fulfill the requirements of Section 4(5) of SEBI Act which provides as under:- "(5) The Chairman and the other members referred to in clauses (a) and (d) of sub-section (1) shall be persons of ability, integrity and standing who have shown capacity in · dealing with problems relating to securities marker or have special knowledge or experience of law, finance, economics, accountancy, administration or in any other discipline which, in the opinion of the Central Government, shall be useful to the Board. " 4. Giving the factual background, he referred to the communication dated 10th September, 2010 of the Department [2014] 3 S. C. R. of Economic Affairs inviting the application for the post of Chairman SEBI. In paragraph 3 of the aforesaid communication which provided that "keeping in view the role and importance of SEBI as a regulator, it is desirable that person with high integrity.

eminence and reputation preferably with more than 25 years of professional experience and in the age group of 50 to 60 years may apply". Learned counsel submits that Mr. Sinha lacks integrity which is well illustrated by a reference to events leading to his appointment. 5. He points out that Mr. Sinha was Joint Secretary, Banking till May, 2002. He became Joint Secretary, Ministry of Finance in June, 2002. Thereafter, he held the post of Joint Secretary, Capital Market, Ministry of Finance from 1st July, 2003. Whilst working as such he was appointed as Additional Director on the Board of Unit Trust of India Asset Management Company Ltd. (hereinafter referred to as 'UTI AMC'). Thereafter, on 3rd November, 2005 Mr. Sinha was appointed as CEO and MD of UTI AMC on deputation for two years. According to Mr. Bhushan, Mr.

Sinha was wrongly sent on deputation under Rule 6(2)(ii) of th~ IAS (Cadre) Rules, 1954, which is applicable in case of deputation in an international organization, NGO or body not owned by the Government. Since the equity share capital in UTI AMC is held by the State Bank of India, Life Insurance Corporation, Bank of Baroda and Punjab National Bank, each holding 25% of the shares, it could not be said that UTI AMC was not controlled by the Government. According to Mr. Bhushan, Mr. Sinha ought to have been sent on deputation under Rule 6(2)(i) of the IAS (Cadre) Rules, 1954 which is applicable for deputation of an IAS officer "under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the State Government, Municipal Corporation or local body by the State Government on whose cadre she/he is borne. " According to Mr. Bhushan, Mr.

Sinha was deliberately sent on deputation under Rule 6(2)(ii) for ulterior motive. He points out that the deputation of Mr. Sinha was ORS. [SURINDER SINGH NIJJAR, J. ] against the accepted assurance given to the J. P. C. on the appointment of CMD of UTI AMC. Mr. Sinha as Joint Secretary, Capital Market and member of the Board of UTI AMC was aware of the recommendation of JPC. He deliberately violated the recommendations. According to Mr. Bhushan, the deputation was also in violation of policy of not allowing deputation to an officer who had overseen the organization to which he was being deputed. Deputation of Mr. Sinha was also in conflict of interest as he was Joint Secretary, Banking till May 2002 and the ownership of UTI AMC was with the SBI, Bank of Baroda, PNB and UC. According to Mr. Bhushan, Mr. Sinha was privy to sensitive information. Under the rules, Mr.

Sinha was required to file affidaviUundertaking that person sent on deputation was not privy to any sensitive information. 6. Continuing further, Mr.. Bhushan pointed out that on appointment as CMD, UTI AMC on 13th January, 2006, Mr. Sinha continued to get pay scale of Joint Secretary, even though he had an option under Rule 6(2)(ii) of drawing the pay of the UTI AMC or the scale of pay of the Government which is beneficial. There was no separate pay scale for CMD of UTI AMC and the same needed to be created in view of the option under Rule 6(2)(ii). On 29th January, 2007, Mr. Sinha made representation to the Government claiming that his batch cadre IAS Officer has been empanelled as Additional Secretary, therefore, his salary be fixed accordingly in the pay scale of Additional Secretary to the Government of India i. e. 22400-525- 24500. On 1st March, 2007, the salary of Mr. Sinha was -fixed in the aforesaid scale, with effect from 10th February, 2007.

communication was also sent c;>n 16th April, 2007 enclosing the terms and conditions of the deputation of Mr. Sinha. It was pointed out that the member of service may opt for his grade pay or the pay of the post, whichever is more beneficial to him. It was also pointed out that the terms and conditions will be applicable with effect from 27th December, 2007. Mr. Bhushan thereafter laid considerable emphasis on the fact that on 27th September, 2007 the Board UTI AMC approved the remuneration package of Mr. Sinha keeping in view the remuneration package of CEO in the industry, ro~es and responsibilities of the CMD, UTI AMC and the current surge of the salary structure in the market, as follows :- • Fixed Pay Rs. 10 million per annum • Variable Pay upto 100% of Fixed pay subject to performance and as may be approved by the Board on yearly basis. 7. According to Mr. Bhushan, this decision was taken on the basis of the recommendation made by the Aapte Committee in July, 2007.

This Committee had been set up to recommend the compensation to be paid to CMD, UTI AMC. o This Committee had recommended the compensation to be paid to CMD, UTI AMC on the basis that the compensation should be market competitive to attract appropriate talent from the market. 8. According to Mr. Bhushan, the actual fact situation would show that the recommendation to appoint CMD, UTI AMC from the market was given a complete go by at the time of the appointment of Mr. Sinha in 2008, when his extension to deputation was denied. Therefore, in order to continue as CMD, UTI, AMC Mr. Sinha took voluntary retirement. Mr. Bhushan states that on 6th November, 2007 though a proposal for extension of deputation of Mr. Sinha for a period of two years was made, he was only granted an interim extension of three months till 2nd February, 2008. This was because some general issue regarding deputation under Rule 6(2)(ii) was being reexamined.

On 28th November, 2007, the Consolidated Deputation Guidelines for All India Services was circulated by the Ministry of Personnel and under the Guidelines the deputation of Mr. Sinha was determined to be under Rule 6(1). He points out that under Rule 6(1) there is no option of getting remuneration as per the scheme of the organization to which ORS. [SURINDER SINGH NIJJAR, J. ] an officer is sent on deputation. On 12th December, 2007, the Finance Ministry, Department of Economic Affairs requested the Department of Personnel and Training (DOPT) to extend the deputation of Mr. Sinha for the remaining one year and nine months under Rule 6(1 ). On 10th March, 2008, the ACC advised the Finance Ministry (Department of Economic Affairs) that extension of tenure as CMD of UTI AMC has been granted to Mr. Sinha till 31st May, 2008 under Rule 6(1 ). It was indicated that upon completion of the aforesaid term he would return to his parent cadre (Bihar).

A direction was issued to the Department of Economic Affairs to identify a suitable replacement of Mr: Sinha by that date. Mr. Bhushan points out that in the meantime on 25th March, 2008, the shareholders approved the emoluments of Mr. Sinha as recommended with effect from 27th December, 2006. This, according to Mr. Bhushan, was not permissible since 28th November, 2007 or 0 at best since February, 2008 the deputation of Mr. Sinha was no longer under Rule 6(2)(ii). Mr. Bhushan points out that inspite of the recommendation of the ACC on 10th March, 2008, recommendation was made by the Chairman of SBI on behalf of other shareholders proposing that Mr. Sinha should continue as CMD of UTI AMC even beyond 31st May, 2008. In the recommendation letter, it was proposed to offer four years tenure to Mr. Sinha as CMD of UTI AMC with effect from 1st June, 2008 or earlier without break of continuity. The letter also notices that under the existing Government Rules Mr.

Sinha will be able to take this offer only if he takes voluntary retirement from the Government Service. A formal letter for extension of tenure was issued to Mr. Sinha on 11th April, 2008 by the UTI AMC. On 12th April, 2008 the Board of UTI AMC approved that the CMD can draw revised compensation with effect from 27th December, 2006. 9. Mr. Bhushan had laid considerable amount of emphasis on these faCtl? to support the submission that although the words in the aforesaid letters give the impression that the approval of the shareholders of the pay package and the bonus was for the future but in reality the resolution enhanced the emoluments with effect from 27th December, 2006. Mr. Sinha in fact drew emoluments on that basis with effect from 27th December, 2006. This fact, according to Mr. Bhushan, is evident from the annual return of UTI AMC for the year 2007-2008. The annual return shows his salary for the year ended 31st March, 2008 as Rs. 20. 12 million.

The return also shows that Mr. Sinha has also been paid Rs. 4. 40 million as an arrear of his salary from 27th December, 2006 to 31st March, 2007 consequent to his salary restructured with effect from 27th December, 2006. Being fully aware of all the facts and having received compensation in crores of rupees, Mr. Sinha did not disclose the same while making an application for VRS on 15th April, 2008. Whilst giving the answer to column No. 5 in the form of application to accept the commercial appointment, Mr. Sinha stated Rs. 22,400-Rs. 525-Rs. 24,500/- as his pay scale and Rs. 23,450/- as his present basic pay. 10. Mr. Bhushan pointed out that this information was necessary for getting the no-objection from the Cadre Controlling Authority and from the office from where the officer retired. Mr. Bhushan further pointed out that not only Mr.

Sinha gave false information in the application for seeking voluntary retirement; he repeated the same in the counter affidavit, in response to the writ petition in this Court. According to Mr. Bhushan, the averments made in paragraph 18 of the counter affidavit are contrary to the Balance Sheet of the UTI AMC for the year 2007-2008. Mr. Bhushan emphasized that it is apparent from the annual report of UTI AMC for the year 2008- 2009, 2009-2010 and 2010-2011 (10% months), Mr. Sinha got remuneration of Rs. 2. 15 crores, Rs. 2. 36 crores and Rs. 3. 62 crores, respectively. According to Mr. Bhushan again in paragraph 21 of the affidavit Mr. Sinha has tried to mislead this Court. Mr. Sinha had stated that the excessive payment of Rs. 4 crores for the year 2010-2011 was on account of severance payment. He submits that the severance payment is payable only when the concerned organization asks the CEO to leave. ORS. [SURINDER SINGH NIJJAR, J. ] In the case of Mr.

Sinha, UTI AMC did not ask him to leave. In fact, Mr. Sinha did not even give the mandatory three months notice, and relinquished the charge without giving any opportunity to the organization to appoint another CEO. Mr. Bhushan submits that Mr. Sinha wrongly received benefits of retirement when in fact he had only resigned. He reiterated that Mr. Sinha has given false information repeatedly. He gives a false declaration under Rule 26(3)(ii) of All India Services Death-cum-Retirement Benefit Rules to the effect that in the last three years of his official career he has not been privy to sensitive or strategic information of UTI AMC. Mr. Bhushan pointed out that this statement is patently false as Mr. Sinha was already on deputation in the same organization at the time of taking YRS. 11. Mr. Bhushan also pointed out that the third deliberate mis-statement made by Mr.

Sinha in the application to accept the post of CEO of UTI AMC, was to the effect that such higher level post are generally not advertised. This statement was in answer to the question whether the post on which the appointment is sought was advertised and, if not, how was the offer made. Mr. Sinha had stated that keeping in mind the contribution made by him and the needs of the company, the shareholders have made the offer to him. Mr. Bhushan submin> that the statement about such higher level post not generally being advertised was against the Aapte Committee's direction. In fact, after Mr. Sinha relinquished the post, an advertisement was issued to fill the post Of CMD, UTI AMC on 4th June, 2012. On the basis of the aforesaid facts, Mr.

Bhushan submits that manipulation of deputation under Rule 6(2)(ii), extension of deputation, concealment of emoluments, misrepresentation and distortion of facts in the application for voluntary retirement and re-employment clearly reflect that respondent No. 4 is not a man of integrity. 12. Mr. Bhushan has also made a reference to a very lengthy letter, written by one Dr. K. M. Abraham, a former Whole Time Member of SEBI, dated 1st June, 2011, to the Prime Minister of India. In this letter, the Whole Time Member has complained that the Chairman, SEBI, Mr. U. K. Sinha is being directly influenced by the Union Minister of Finance or Smt. Omita Paul, Adviser to Finance Minister. Mr. Bhushan reiterated that the letter by Dr. Abraham contains unbiased information. The former Whole Time Member was only expressing his concern that under the leadership of Mr. U. K. Sinha the institutional integrity of SEBI is being compromised. 13.

Another ground of attack on the appointment of the respondent No. 4 pertains to the suppression of material facts relating to the remuneration of Mr. Sinha as CMD, UTI AMC before the Search-cum-Selection Committee and the ACC. Mr. Bhushan points out that the application form for the post of SEBI Chairman required the applicant to disclose scale of pay and basic pay of the post presently held along with service of the petitioner. The first meeting of the Search-cum-Selection Committee was held on 2nd November, 2010. The SSC short listed five candidates out of nineteen. Mr. Bhushan then points out that the second meeting of the Committee was held on 13tl'I December, 2010, wherein the names of Mr. U. K. Sinha and Mr. Himadri Bhattacharya were recommended for the post of Chairman, SEBI in the order of merit. Mr. Bhushan further submitted that the selection of Chairman of SEBI required the approval of the ACC.

The appointments recommended to the ACC have to be sent along with a standard Performa and annexures which are to be filled in by the Ministry recommending the appointment. The proposal for the appointment of Mr. Sinha was put up to the ACC by the Finance Ministry vide its confidential letter No. D. O. No. 2/23/2007-RE dated 13th December, 2010. Blatantly false information is given against the column requiring details about the pay scale presently enjoyed by the applicant. In reply to this column, it is stated "not available". Against Column 6(ii), scale of pay of the post it is stated that "the chairman shall have an option to ORS. [SURINDER SINGH NIJJAR, J. ] receive pay (a) as admissible to a Secretary to the Government of India; or (b) a consolidated salary of Rs. 3,00,000 per month. It was also submitted that in between the first and the second meeting of the Search-cum-Selection Committee, there were 40 days for the officials to ensure that the particulars of Mr.

Sinha are verified before filling up the application form. The officials could have ascertained the particulars of his emoluments as CMD, UTI AMC. Mr. Bhushan submits that in order to mislead this Court, Mr. Sinha in paragraph 10 of the counter affidavit has given a totally false explanation that the Finance Secretary was aware of his market-bench-marked salary as CMD, UTI AMC. This, according to Mr. Bhushan, is a bald assertion without any material to substantiate the same. Mr. Bhushan submits that the other explanation g;ven by Mr. Sinha that information relating to emoluments of 1. ;MD, UTI AMC was in public domain as full disclosure is made in the 0 Balance Sheet of UTI AMC. It is submitted by Mr. Bhushan that such an explanation cannot possibly be accepted. Th. e question before this Court, according to Mr. Bhushan, is not whether the person who filled up the form knew or could have known the . correct emoluments drawn by Mr. Sinha.

The issue is that the applicant had failed to disclose the correct particulars about his emoluments and the pay scale before the Search Committee. This misinformation was also placed before the ACC. According to Mr. Bhushan, such a manipulative person cannot be said to be a man of integrity. Mr. Bhushan, as noticed earlier, submitted that the Committee in its second meeting had recommended two names. However, the Finance Minister forwarded only the name of Mr. Sinha to the ACC for approval. Even the document which was placed before the ACC seeking approval for the appointment of Mr. Sinha mentions "not available" against the present scale of pay. Mr. Bhushan further pointed out that Mr. Sinha's total emoluments for the year 2010-2011 were over 4 crores per annum. This amount was probably more than what the bureaucrats senior to him and involved in the selection process were paid by the Government in their entire career. Mr.

Bhushan, therefore, submits that it was for this reason that Mr. Sinha manipulated that there should be no advertisement and the selection should be made through the Search route. In the case of advertisement, he would have to reveal the emoluments received by him. Relying on the aforesaid facts, Mr. Bhushan submits that since vital pieces of information was withheld from the Search Committee as well as ACC, Mr. Sinha clearly cannot be said to be a man of high integrity. The post of the Chairman, SEBI is a very important position having a bearing on the flow of investment, Indian and Foreign, economic growth and the safety of funds invested by large and small investors. Therefore, according to Mr. Bhushan, it was important that the complete facts particularly those having direct bearing on deciding the question of integrity should have been placed before the Search-cum-Selection Committee and the ACC.

In support of the submission learned counsel has relied on the judgment of 1 this Court in Centre for PIL & Anr. Vs. Union of India & Anr. 14. The next ground of challenge of the petitioner to the appointment of Mr. Sinha as the Chairman of SEBI is that it is vitiated by mala fide. Mr. Bhushan pointed out that to accommodate Mr. Sinha the earlier Chairman of SEBI was denied extension in tenure. The SEBI (Term and Condition of Service of C~airman and Members) Rules were amended on 23rd July, 2od9 not to extend the term of the Chairman and the WTM from three to five years. The Director of Capital Market Division put up a proposal on 2nd September, 2009 for aligning the terms of the Chairman and WTM by giving two years extension and the same was endorsed by the Finance Secretary.

After following the due procedure, consent for the extension of the concerned persons was taken and the proposal for extension of tenure was recommended to the DOPT by the Director, Capital Market Division by letter dated 16th November, 2009. According to Mr. Bhushan, from that stage manipulation started with the active cooperation of Ms. Omita Paul, the then Advisor in the Finance Ministry. On 25th 1. (2011 l 4 sec 1. ORS. [SURINDER SINGH NIJJAR, J. ] November, 2009, she called for the file relating to the recommendation for extension, in the term of the Chairman and the Whole Time Member. The file was sent to her by the Finance Secretary on 27th November, 2009 and was seen by her on 30th November, 2009. It was again sent to the Advisor for her perusal on 16th December, 2009 and noting was made by her on 21st December, 2009 drawing the attention of the Finance Minister to Page 22 regarding the composition of the SEBI Board and the present tenure of the Board. Mr.

Bhushan submits that the note was written in such a way by Ms. Omita Paul, the then Finance Minister reversed his earlier decision to accord extension to the then Chairman. Subsequently, the orders were issued to start the selection process for the Chairman on 10th August, 2010. Suggestion of giving further extension to the existing officers was overruled. Mr. Bhushan submits that the justification given by the respondents in the counter affidavit for non grant of the extension is wholly fallacious. He submits that the justification that earlier Chairman was not granted extension as his name was reported in newspapers of being involved in NSDL Scam. According to Mr. Bhushan, there is no such noting in the official files. Mr. Bhushan also emphasized that the real reason for denial of extension to the former chairman is that it was at. his insistence that investigations were being held against the Sahara and RIL.

There was a complaint pending with regard to insider trading relating to RIL and Reliance Petroleum in which over Rs. 500 crores were made in four days of trading in September, 2007. Mr. Bhushan then submits that in order to facilitate the selection of Mr. Sinha there was illegal and arbitrary change in composition of Search-cum-Selection Committee. Ms. Omita Paul ordered two new names of her own to be appointed as experts of eminence on the Selection Committee. She also suggested Secretary (Financial Services) over and above the two experts. Thus, according to Mr. Bhushan, three of the five members of the Search-cum-Selection Committee were hand picked by Ms. Paul. In order to include Secretary (Financial Services) in the Search Committee, Rule 5 of the Rules, 2010 was amended to include clause (e) under which two nominees of the Finance Minister were included. In such a way, primacy was given to the Finance Minister. Mr.

Bhushan submits that the record clearly shows that the object of the entire exercise of changing the Rules was to ensure that the Committee desired by the Advisor Ms. Omita Paul remains unchanged. It was also done probably to ensure that the ex-officio Chairman, the Cabinet Secretary, remains the only member unconnected with the Finance Minister. Mr. Bhushan submits that Ms. Omita Paul in the reply affidavit has admitted that her role was merely advisory. Mr. Bhushan submits that in spite of the admitted position that her role was merely advising without having any authority to process the matter or take a decision, the files relating to further extension or composition of Search-cum- Selectio n Committee were regularly sent to her. The composition of the Search Committee was changed at her 0 behest. Mr. Bhushan then submitted that the respondents have sought to justify the selection of Mr.

Sinha on the basis that he was earlier unanimously selected by the Search-cum-Selection Committee in 2008, on the same post. If that was so, it is surprising that the Government, in fact. appointed Mr. C. B. Shave as the Chairman, SEBI, who had neither applied for the post nor appeared in the interview. He had in fact informed the Committee that he did not want to be considered for t~e post of Chairman, SEBI. According to Mr. Bhushan, this can hardly be a fact relevant to judge the integr~ty of Mr. Sinha. 15. To further establish the ground of a mala fide, Mr. Bhushan submits that the post of CMD of UTI AMC was kept vacant for 17 months to accommodate the brother of respondent No. 6 Ms. Omita Paul. He points out that shortly after the appointment of Mr. Sinha in mid-February reports started appearing in the press from April, 2011, that the brother of Ms. Omita Paul, Jitesh Khosla, was the front runner for the post of UTI AMC because he had the backing of the Finance Minister.

These reports also stated this was being resisted by a foreign investor and whose consent was necessary. Thus, the post of ORS. [SURINDER SINGH NIJJAR, J. ] CMD UTI AMC continued to remain vacant for 17 months because the brother of Omita Paul could not be appointed to the post. According to Mr. Bhushan, the whole episode of appointment of Mr. Sinha as CMD, UTI AMC and the proposed appointment of Mr. Jitesh Khosla was adversely commented upon by the Joint Parliamentary Committee, because the recommendations of the Committee were ignored. The Joint Parliamentary Committee had gone into the entire UTI Scam as a result of which massive losses were incurred by the Government investors and tax payers. The report in paragraph 5 made the following recommendations :- "(V) Government has stated that a professional Chairman and Board of Trustees will manage UTl-11 and that advertisements for appointment of professional managers will be issued.

The committee recommended that it should be ensured that the selection of the Chairman and professional managers of UTl-11 should be done in a transparent manner, whether they are picked up from the public or private sector. If an official from the public sector is selected, in no case should deputation from the parent organization be allowed and the person chosen should be asked to sever all connections with the previbus employer. This is imperative because under no circumstance should there be a public perception that the mutual fund schemes of UTl-11 are subject to guarantee by the Government and will be bailed out in case of losses. " 16. Mr. Bhushan submits that the aforesaid recommendations were blatantly ignored in the selection of Mr. Sinha. He further pointed out that neither Mr. Sinha nor Mr. Jitesh Khosla were professionals. Neither of them met any of the four criteria in the advertisement inserted for the post of UTI CMD in newspaper dated 4th June, 2012.

In fact, the entire manipulation and mala fide exercise, according to Mr. Bhushan, is exposed by the advertisement ,that was released after the brother of Ms. Omita Paul, Advisor ·opted out of the race (2014] 3 S. C. R. because the tenure of Ms. Omita Paul, Advisor was coming to an end on account of it being co-terminus with that of Finance Minister. He emphasized that it was only then the advertisement was released fulfilling the commitment given to the JPC by the Government in 2002. 17. In reply to the preliminary objection raised by the respondents in the counter affidaviUreplies, he submits that they deserve to be ignored. According to Mr Bhushan, the respondents including the Government have made concerted attack on the public spirited attitude of the petitioner. He is wrongly labeled as a person who has been set up by persons or entities having vested interests.

It is also wrongly alleged that the petitioner had similarly challenged the appointment of another past Chairman of SEBI which was decided against him with imposition of costs. The respondents have also wrongly stated that this is the 4th similar petition on a similar issue. Reenforcing high credentials of the petitioner, Mr. Bhushan submits that he has filed several notable public interest litigations that have unearthed corruption and financial irregularities. The appointment of the petitioner as Advisor to Prasar Bharti benefited the organization by about Rs. 20 Crores. He was the original complainant in the 2G spectrum scam which eventually led to the registration of the FIR by the CBI. This fact has been noted by this Court in the 2G case. On the basis of the above, Mr.

Bhushan submits that the petitioner has given his time and forgone earnings selflessly in the true spirit of Article 51A of the Constitution and continues to unravel financial scams because of the paucity of people who both unaerstand and are willing to take risks and make sacrifices. Mr. Bhushan then points out that the petitioner had previously challenged the appointment of a previous SEBI Chairman, but it was not related to the integrity of the then Chairman. In fact, the then Chairman was a person with high integrity and compassion. However, his leniency in trusting the sharp players in the market resulted in lot of scams in the first three years of his tenure. Therefore, the petitioner has challenged the ORS. [SURINDER SINGH NIJJAR, J. ] extension that had been given to the then Chairman SEBI on the ground that the Government should reassess his performance after three years. The writ petition was dismissed.

The Chairman was given yet another extension in 2000 to make him the longest serving Chairman. What followed was the largest stock market scam in which the investors and the government lost tens of thousands of crores and the entire JPC report is the testimony to the scam. The Government and tax payer lost over Rs. 10,000 crores in the UNIT 64 scam. Similarly Mr. Bhushan submits that the respondents have wrongly taken the preliminary objection that earlier two writ petitions having 'been filed by the petitioner challenging the appointment of respondent No. 1 having been dismissed as withdrawn. He further submits that the respondents have wrongly leveled allegations that this petition is at the behest of some other · person who is interested to continue as the Chairman of SEBI. 0 The petitioner has not prayed for the reinstatement of any of the previous incumbents.

The petitioner only prays for appointment of a person as the Regulator who should be a person of high integrity functioning in a transparent manner. Mr. Bhushan submits that although the respondents claim that the petitioner has suppressed material facts, the suppression of 1facts by respol'! dent No. 4 is not treated with the same amount of concern. Respondents' Submissions: 18. In response to the submission made, learned Attorney General Mr. G. E. Vahanvati, appearing for the Union of India, has submitted that public interest litigation jurisdiction is based on the principle of Uberrimae fide which means 'utmost good faith'. Therefore, before the petitioner can attack the integrity of respondent No. 4, he would have to establish his own good faith in filing the present writ petition. He further submits that this is a very unfair petition. Documents have been presented before the Court in a very selective manner.

The petitioner has _ admitted the suppression of earlier petition but he has tried to explain it by giving some excuses. The submission of the petitioner that the petition was dismissed on the pleadings has been contended by Mr. Vahanvati to be totally without any basis. This is evident from his letter to the Registrar sent in August, 2000. He stated that Writ Petition (C) No. 69 of 2012 deals with Cairn-Vedanta deal and it has nothing to do with the present writ petition. Then it is stated that there is one similar matter filed by some other person which is pending before this Court which is W. P. (C) No. 246 of 2012. The petitioner never mentioned the earlier petitions filed by him which were dismissed. The objection taken is that the petition deserves to be dismissed for suppression of earlier petition. The letter given to the Registrar gives the totally distorted version. Similarly, the petitioner has distorted the entire sequence of events with regard to the deputation of Mr.

Sinha. 19. Mr. Vahanvati points out to paragraph 34 of the petition and the emphasis placed by the petitioner that "within a period of a day the emoluments too increased from around six lacs per annum to one crore per annum". It is submitted that the deputation of respondent No. 4 commences on 3rd November, 2005 he became CEO, UTI AMC on 27th December, 2006. The letter dated 16th April, 2006 which is very relevant to the issue has been withheld by the petitioner. Referring to the affidavit of Mr. Sinha, he submits that all other information has been given according to law. The terms and conditions for deputation clearly show that Mr. Sinha was permitted to opt for his grade of pay or pay scale whichever is more beneficial for him. The recommendations made by the Aapte Committee were taken into notice when extension of tenure of Mr. Sinha was approved by the Board of Directors UTI AMC on 17th September, 2007.

Actual sanction came on 11th April, 2008, as the approval of the Bank of Baroda did not come till 29th March, 2008. Therefore, there was no approval prior to 11th April, 2008 of the compensation of Rs. 1 crore per annum alongwith the related payment of bonus of Rs. 1 crore. Similarly, it is stated by Mr. Vahanvati that submission of the application ORS. [SURINDER SINGH NIJJAR, J. ] for voluntary retirement was done four days after the approval on 15th April, 2008. Until then, the petitioner had been in receipt of pay scale which was duly sanctioned on the post held by him in the Government. Therefore, the petitioner has unnecessarilylried to create an impression that there has-been any deliberate misrepresentation or concealment of fact by respondent No. 4. In the form of application to accept commercial appointment, respondent No. 4 had clearly stated that he has been working as the Director/CEO UTI AMC since 3rd November, 2005 till date. Respondent No.

4 had to state the pay scale of the post and the pay drawn by the officer at the time of the retirement which in his case was of Rs. 22,400-535- 24,500. Respondent No. 4 had clearly mentioned his present basis pay as Rs. 23,450/-. 20. Learned Attorney General submitted that the petitioner has wrongly alleged that respondent No. 4 had given a false declaration that he was not privy to any sensitive information. This would clearly only indicate that the respondent No. 4 has to disclose that he was not privy to any sensitive information received in his official capacity. Learned Attorney General submits that the petitioner in fact has an absurdity of facts with regard to compensation which were placed before the Ministry of Finance on 1st May, 2008. The Finance Minister approved the proposal. It was specifically observed that there is no conflict of interest between the Government of India and UTI AMC.

On 17th April, 2008, Department of Personnel and Training sent a comprehensive note with regard to the application of respondent No. 4 in the prescribed format to seek permission under Rule 26 of the All India Services (DCRB) Rules, 1958 to join the Company i. e. UTI Asset Management Company Ltd. on regular basis, post voluntary retirement. The proposal was thoroughly examined and duly approved by all the authorities. Learned Attorney General drew our attention to paragraph 30 of the petition and submitted a list of documents. The petition has given a twist in the tale. This has been done, according to learned Attorney General, to give the same controversy a new flavour. He submits that the allegations about the pattern of JPC directions are false. The same petitioner had challenged Mr. Mehta's appointment earlier. It is the submission of learned Attorney General that public interest litigation cannot be filed irresponsibly. It has to be handled very carefully.

It cannot be used as an AK-47 with the hope that some bullets will hit the target. The allegations of the petitioner that the rules were deliberately amended to hand pick Mr. Sinha are without any basis. In fact, there was no illegality committed in changing the composition of Search-cum-Selection Committee. Prior to 23rd July, 2009 there was no rule on the procedure to be followed for the selection of Chairman/WTM of SEBI. Therefore, before July, 2009 selections were made as decided by the Finance Minister from time to time. However, for the selection of the SEBI Chairman in 2008 the then Finance Minister had approved on 2nd November, 2007 that the High Powered Search Committee (later notified as the Search Committee) which had four members and one Chairman. The Finance Minister noted that there should be one more outside expert. Accordingly, Dr. S. A. Dave, Chairman CMIE, was nominated as the Member.

Therefore, to say that the amendment of the rules has been made just to ensure that balance was tilted in favour of the Finance Minister is without any basis. 21. Learned Attorney General also pointed out that the Search-cum-Selection Committee in its meeting held on 29th January, 2008 had unanimously short listed two names in the following order: (1) Mr. U. K. Sinha and (2) Mr. J. Bhagwati. However, notwithstanding the recommendation of Mr. Sinha by the Selection Committee, Shri Bhave was appointed as Chairman, SEBI on 15th February, 2008. In 2009, a statutory system was established for selection of Chairman/Whole Time Member of the SEBI. The proposal was also placed to amend Rule 3 of the Securities &Exchange Board of India (Terms and Conditions of Service of Chairman and Members) Rules, 1992 to include the provision relating to procedure to be followed for the selection of Chairman/WTM of SEBI. This was done by ORS. [SURINDER SINGH NIJJAR, J.

) incorporating sub-rule (5) which required the recom·mendation of the Search-cum-Selection Committee consisting of Cabinet Secretary, Department of Economic Affairs, Chairman, SEBI for selection of WTM and two experts of eminence from the relevant field. When it was decided in 2010 to initiate action for the fresh selection for the post of Chairman, SEBI two experts of eminence from the relevant field were Shri Suman Bery, Director General, National Council of Applied Economic Research (NCAER) and Prof. Shekhar Choudhary, former Director, llM Calcutta. The composition of the Search-cum- Selection Committee was sent to the Department of Personnel & Training for approval. However on 23rd September, 2010, Department of Personnel and Training pointed out that inclusion of the Secretary Financial Services was not within the Rules as amended on 23rd July, 2009. Therefore, the matter was again referred to the Ministry of Law & Justice.

During the discussion that was held with the Ministry of Law, it was suggested that there could be an amendment to the rule based on the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963. Under these rules, the Selection Board inter alia consists of a nominee of the Ministry of Law as well as such other persons if any, not exceeding two, as the Law Minister may appoint. It was in these circumstances that the proposal to amend the 1992 Rules was approved. 22. The Search-cum-Selection Committee after scrutinizing the qualification and experience of the short listed candidates unanimously placed respondent No. 4 first in the order of merit. The impression sought to be given wrongly by the petitioner is that respondent No. 4 was placed at No. 2 and Mr. Bhattacharya was at No. 1. This is a deliberate distortion by the petitioner. 23. With regard to the role played by Ms.

Omita Paul, learned Attorney General submitted that in fact the present petition is a mala fide attempt to resurrect the challenge earlier rejected by this Court. The petition is a sheer abuse of the . process of law. The petitioner is guilty of making reckless allegations against two highly respected dignitaries who were appointed expert members of the Selection Committee. Learned Attorney General also submitted that the submissions with regard to the non extension of tenure of Mr. Shave are totally baseless and need to be ignored. He makes a reference S to a detailed explanation given in the affidavit filed by the UOI. The term of Mr. Shave was not extended to avoid the Government being unnecessarily involved in a scandal. In the earlier petition (W. P. No. 340 of 2012), the petitioner has sought an extension to continue the tenure of Mr. Shave for 5 years which was withdrawn. Prayer No. 2 in the W. P. (C) No.

340 of 2011 was as follows : "Issue a writ of mandamus or any other appropriate writ, order or, direction to quash and declare void constitution of sub-committee of the Search-cum-Selection Committee under Shri U. K. Sinha, Chairman SESI for conducting interview to the post of whole time members and proceedings/recommendation thereof. " 24. This would clearly ensure that as soon as Mr. Sinha's appointment was declared void, Mr. Shave would continue as Chairman. This is evident from Prayer 5 which is as under: "Issue a writ of mandamus or any other appropriate Writ, order or direction to direct Respondent Nos. 1 & 2 to act in accordance with the Government of India Notification No. 2/106/2006-RE, dated 23rd July, 2009 which stipulates enhancement of the tenure of existing Chairman and Whole Time directors of SEBI from three (3) to five (5) years. " 25. Similarly, Writ Petition (C) No. 392 of 2011 again repeats the prayer which was made in the earlier writ petition.

It was submitted by the learned Attorney General that the present writ petition is a camouflage for the earlier writ petitions which were dismissed. Learned Attorney General submitted that the submission of Mr. Shushan that why a person, who was earning crores, would expect a position on which he was only ORS. [SURINDER SINGH NIJJAR, J. ] to be paid lacs, is too absurd to be even taking cognizance of. Respondent No. 4 accepted the Chairmanship of SEBI as a matter of national duty and as a matter of honour. Finally, learned Attorney General submitted that in the interest of justice the tendency among the petitioners to make wild allegations in public interest litigation needs to be curbed. 26. Mr. Harish Salve, learned senior counsel and Mr. Rajesh Dwivedi appearing for respondent t-Jo. 4 have also raised a preliminary objection on the ground of maintainability. According to Mr. Salve, the writ petition is not maintainable because it is not filed in public interest.

In fact, the writ petition has been filed as surrogate litigation on behalf of an individual who was very anxious to continue as Chairman, SEBI, namely Mr. C. B. Bhave. Secondly, Mr. Salve submits that the writ petition is liable to be dismissed as it does not make a candid disclosure of all the facts which are relevant for the adjudication of the issues raised. Learned senior counsel submits that a litigant is duty bound to make full and true disclosure of the facts without any reservation, even if they seem to be against them. In support of this proposition, he relies on State of Madhya 2 Pradesh Vs. Narmada Bachao Ando/an & Anr. and K. D. 3 Sharma Vs. Steel Authority of India Limited & Ors. . The factual basis for the aforesaid submission is that the petitioner had filed a writ petition in the Delhi High Court against the then Chairman, SEBI, Mr. D. R. Mehta, which was dismissed with cost. A Special Leave Petition against the same was dismissed.

However, this Court reduced the cost. This fact is deliberately suppressed. Writ Petition No. 340 of 2011 on the same issue was dismissed by this Court. Dismissal of these petitions has also been suppressed by the petitioner. Mr. Salve reiterates the submissions of the Attorney General that public interest litigation is founded on the principle of uberrima fide, i. e. , the utmost good faith of the petitioner. To buttress his submission, learned senior counsel relied on S. P. Gupta's 2. (2011) 7 sec 639. 3. (2008) 12 sec 481. case. This petition is motivated by ill will, and the moving spirit behind the petition is Mr. C. S. Shave. He reiterated the submissions of the Attorney General that Mr. C. S. Shave and the Whole Time Member Dr. K. M. Abraham were aggrieved by the non-grant of extension to them, on the posts occupied by s them, in the light of change in the rules.

In fact, the petitioner, in his submission, has made detailed reference to the motivated complaint made by the Whole Time Member Dr. K. M. Abraham about the functioning of the new Chairman, i. e. , Mr. U. K. Sinha. This was only because Mr. Shave and Mr. Abraham were upset about the non-extension of tenure of Mr. Shave. Apart from the change of rules, the extension was not granted to Mr. Shave for his lapses in dealing with the IPO Scam of 2005 when he was the Chairman of NSDL. Conclusions: 27. We have considered the submissions made by the learned counsel for the parties. Although all the respondents have raised the preliminary issue about the maintainability of the writ petition, we shall consider this submission after we have considered the issue on merits. The foremost issue raised by the petitioner and emphasized vehemently by Mr. Parshant Shushan is that respondent No.

4 lacks the integrity and does not meet the eligibility conditions laid down in sub-section (5) of Section 4 of the SESI Act. Additionally, respondent No. 4 does not fulfil the conditions contained in communication of the government dated 10th September, 2010 which emphasizes, keeping in view the role and importance of SESI as a regulator, that it is desirable that only a person with high integrity and reputation should be appointed as Chairman of SESI. 28. We have narrated the sequence of events relied upon by the petitioner to establish that respondent No. 4 is not a man of high integrity. We have also narrated how the respondents have, with equal vehemence, countered the submissions made on behalf of the petitioner. All the respondents have submitted that the writ petition filed by the petitioner ought to be dismissed ORS. [SURINDER SINGH NIJJAR, J. ] on the ground of maintainability alone. As noticed earlier, we shall consider the preliminary objections later. 29.

We agree with Mr. Bhushan that SEBI is an institution of high integrity. A bare perusal of the SEBI Act makes it apparent that SEBI was established to protect the interests of 9 investors in securities and to promote the development of, and to regulate the securities market. In fact, the SEBI Act gives wide ranging powers to the Board to take such measures as it thinks fit to perform its duty to protect the interests of investors in securities and to prqmote the development of, and to regulate the securities market. These measures may provide for regulating the business in stock exchanges and any other securities markets. Further measures are set out in Sections 11 (1 ), (2)(a to m) to enable SEBI to perform its duties and functions efficiently.

Section 11 (2)(a) provides that the Board o may take measures to undertake inspection of any book, register, or other document or record of any listed public company or a public company which intends to get its securities listed on any recognised stock exchange. The Board can exercise its power where it has reasonable grounds to believe that such company has been indulging in insider trading or fraudulent and unfair trade practices relating to securities market. To enforce its directions, the Board has powers under Section 11 (4) to issue any suspension/restraint orders against the persons including office bearers of any stock exchange or self regulatory organisation. It can impound and retain the proceeds or securities in respect of any transaction which is under investigation. The wide sweep of the powers of SEBI leaves no manner of doubt that it is the supreme authority for the control and regulations and orderly development of the securities market in India.

It would not be mere rhetoric to state that in this era of globalisation, the importance of the functions performed by SEBI are of paramount importance to the well being of the economic health of the nation. Therefore, Mr. Bhushan is absolutely correct in emphasising that the Chairman of SEBI has to be a person of high integrity. This is imperative and there are no two ways about it. The importance of the functions performed by SEBI has been elaborately examined by this Court in the case of Sahara India Real Estate Corporation Ltd. & Ors. Vs. Securities and Exchange Board 4 of India & Anr. Justice Radhakrishnan, upon examination of the various provisions of the SEBI Act, has observed that it is special law. a complete code in itself containing elaborate provisions to protect interest of the investors. The paramount duty of the Board under the SEBI Act is tc protect the interest of the investors and to prevent unscrupulous operators to enter and remain in the securities market.

It is reiterated in paragraph 67 that SEBI is also duty bound to prohibit fraudulent and unfair trade practice relating to securities markets. Similarly, Justice Khehar in the concurrent judgment has emphasised the importance of the functions performed by SEBI in exercise of 0 its powers under Section 11. In paragraph 303. 1, it is observed as follows :- "303. 1. Sub-section (1) of Section 11 of the SEBI Act casts an obligation on SEBI to protect the interest of investors in securities, to promote the development of the securities market, and to regulate the securities market, "by such measures as it thinks fit". It is therefore apparent that the measures to be adopted by SEBI in carrying out its obligations are couched in open-ended terms having no prearranged limits. In other words, the extent of the nature and the manner of measures which can be adopted by SEBI for giving effect to the functions assigned to SEBI have been left to the discretion and wisdom of SEBI.

It is necessary to record here that the aforesaid power to adopt "such measures as it thinks fit" to promote investors' interest, to promote the development of the securities market and to regulate the securities market, has not been curtailed or whittled down in any manner by any other provisions under the SEBI Act, as no provision has been 4. 2013 (1) sec 1. ORS. [SURINDER SINGH NIJJAR, J. ] given overriding effect over sub-section (1) of Section 11 of the SEBI Act. " In sub-paras 303. 2, 303. 3 and 303. 4, the powers of SEBI under Section 11 (2), 11 (3) and 11 (4) have been analysed and elaborately explained. 30. It becomes clear from the above that the functions performed by SEBI are such that any malfunctioning in the performance of such functions can disturb the economy of our country.

Keeping in view the aforesaid scope and ambit of the discretionary powers conferred on the Members of the SEBI Board, there is little doubt in our mind that only persons of high integrity would be eligible to be appointed as Chairman/ Member of the SEBI. Section 4(5) inter alia stipulates that the Chairman and other Members of the SEBI shall be persons of "ability, integrity and standing who have shown capacity in · dealing with problems relating to securities market. " Statutorily, therefore, a person cannot be appointed as Chairman/Member of the SEBI unless he or she is a person of high integrity. We, therefore, have no hesitation in accepting the submission of Mr. Bhushan that the selection and appointment of respondent No. 4 could be challenged before this Court in a writ petition under Article 32 of the Constitution of India on the ground that he does not satisfy the statutory requirements of a person of high integrity. 31. Since Mr.

Bhushan has relied on the judgment of this Court in Centre for PIL & Anr. (supra), it would be appropriate to notice the observations made in that judgment by S. H. Kapadia, G. J. in paragraph 2 of the judgment, it has been observed as follows :- "2. The Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the difference between legality and merit as also between judicial review and merit review..... If a duty is cast under the proviso to Section 4(1) on the HPC to recommend to the President the name of the selected candidate, the integrity of that decision-making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of the law.

" In our opinion, these observations are relevant as the procedure prescribed for the appointment of Chairman, SEBI is similar to the procedure which was prescribed for the selection on the post of Central Vigilance Commissioner. This apart, it has been emphasised that eve is an integrity institution. The reasons for the aforesaid view are stated in paragraph 39, it has been observed as follows :- 0 "39. These provisions indicate that the office of the Central Vigilance Commissioner is not only given independence and insulation from external influences, it also indicates that such protections are given in order to enable the institution of the CVC to work in a free and fair environment. The prescribed form of oath under Section 5(3) requires the Central Vigilance Commissioner to uphold the sovereignty and integrity of the country and to perform his duties without fear or favour. All these provisions indicate that the CVC is an integrity institution.

The HPC has, therefore, to take into consideration the values, independence and impartiality of the institution. The said Committee has to consider institutional competence. It has to take an informed decision keeping in mind the abovementioned vital aspects indicated by the purpose and policy of the 2003 Act. " 32. Elaborating further, Kapadia, C. J. , has further observed: "43. Appointment to the post of the Central Vigilance ORS. [SURINDER SINGH NIJJAR, J. ] Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision-making process of the recommendation... " 33. In paragraph 44, it was clarified that "we should not be understood to mean that personal integrity is not relevant. 8 It certainly has a co-relationship with institutional integrity. " 34. Keeping in view the aforesaid observations and the ratio of the law laid down, let us now examine the issue with regard to the validity of the recommendation made for the appointment of Mr.

Sinha together with the issue as to whether Mr. Sinha does not fulfil the statutory requirement to be appointed as the Chairman of SEBI. DEPUTATION : Was it irregular. illegal or vitiated by colourable exercise of power? o 35. It is a matter of record that respondent No. 4 was on deputation with UTI AMC since the year