ORDER
1. Union of India has filed this petition to challenge the order passed by the Central Administrative Tribunal (for short, 'the Tribunal') in O.A. No. 1020 of 1999, dated 8-2-2001 wherein the Tribunal has quashed the appointment of Sri R.K. Raghavan, (respondent 7) as the Director of Central Bureau of Investigation (for short, the CUD, at the instance of Sri C. Dinakar, IPS, respondent 1, herein on the ground that the petitioner had acted against the rule laid down by the Supreme Court of India in the case of Vineet Narain and Another v Union of India and Others, regarding the procedure to be followed for the selection and appointment of Director of CBI.
2. Facts.--The basic premise laid down by respondent 1 in the O.A. before the Tribunal is that both he and respondent 7 were appointed to the Indian Police Service (hereinafter referred to as 'the IPS') in the year 1963. On the date of appointment of Director of CBI on 31-12-1998 the inter se seniority positions of the first four officers in the All India IPS seniority list were as follows:
(i) R.K. Sharma(1962);
(ii) H.P. Kumar (1962);
(iii) R.K. Raghavan (1963) - respondent 7;
(iv) C. Diriakar (1963) - applicant.
As on the date of selection which led to the issuance of the order impugned, the IPS Officers at SI. Nos. (i) and (ii) above, namely, R.K. Sharma and H.P. Kumar were reportedly facing enquiries on some allegations and hence were not considered for the said selection.
3. It was averred that the post of Director of CBI was one of the two senior most posts in the IPS in the country and is under the Government of India. It is a selection post in the IPS. IPS being an All India Service, the IPS Officers are governed by the All India Services Act, 1951. The conditions of service of IPS Officers are regulated by the IPS Pay Rules, 1954, made under Section 3(1) of the All India Services Act (for short, 'the 1954 Rules'). That the post of CBI Director is one of the 'posts carrying pay above the timescale of pay' as mentioned in Schedule III-C to the IPS (Pay) Rules, 1954 with fixed pay of Rs. 26.000/- per month as revised with effect from 1-1-1996, and hence appointment to this post should be in accordance with Rule 3(2-A) of these Rules. Rule 3(2-A) reads:
'Appointment to the selection grade and posts carrying pay above the timescale of pay in the Indian Police Service shall be made by selection on merit with due regard to seniority'.
4. Specific case pleaded by respondent 1 in his application was that the post of the Director of CBI is a post under the Government of India and only the IPS Officers of various cadres who are found fit and put on the panel of Government of India are eligible for consideration. It was further stated therein that IPS Officers of and above the grade of DIG of Police are put on such panel by selection on merit with due regard to seniority according to the prescribed procedure once in every year. Empanelling of DIGP and Inspectors General of Police ('IGF, for short) is done by the Central Police Establishment Board under the Union Ministry of Home Affairs, and that of Director General of Police CDGP', for short) and the Additional DGP is done by the Cabinet Secretariat. IPS Officers are selected from these panels and appointed to various posts under the Government of India as and when vacancies arise.
5. It was further averred that respondent 1 had learnt and which he believed to be true that he had been selected as per prescribed procedure and put in the panel of DGP (Central), respondent 7 was not put in the panel of DGP (Central) in the year 1997. In the month of February 1997, respondent 1 was asked by the then Prime Minister of India Sri H.D. Devegowda, whether he was willing to go on deputation to the Government of India to serve as Director, CBI as there was a proposal to change the then Director, Sri Joginder Singh. Respondent 1 was DGP, Corps of Detectives, Training, Special Units and Economic Offences in Ban galore at that time. On expressing his willingness for this assignment, the Government of India reportedly asked the Government ofKarnataka whether it was willing to spare the services of respondent 1. State of Karnataka reportedly agreed to the proposal. Before respondent 1 could be appointed as the Director, CBI, Congress (I) withdrew support to the Government of Sri H.D. Devegowda and Sri I.K. Gujral became the Prime Minister of India. Sri R.C. Sharma who was junior to respondent 1 was appointed as the Director, CBI. Sri Sharma retired from service on 31st of January, 1998.
6. Meanwhile Supreme Court of India pronounced the judgment in Vineet Narain's case, supra, on 18th of December, 1997. Pending appointment of the Central Vigilance Commissioner (for short, 'the CVC'), the CBI Director's post which fell vacant, could not be filled up.
7. Respondent 1 sent a detailed letter on 1st of March, 1998 to the Union of India and CVC requesting for considering him for appointment to the post of CBI Director. On 26th of August, 1998, Union of India promulgated an ordinance providing for the appointment of the CVC. On 1st of September, 1998 Sri N. Vittal, an IAS Officer (retired) on 1960 batch was appointed as the CVC. He took charge of his office on 3rd of September, 1998. On 31st of October, 1998 Sri Vittal told 'Star News' that the committee consisting of himself, Secretary, Department of Personnel and Secretary, Ministry of Home Affairs, met and prepared a panel of names of three IPS Officers for the post of Director, CBI and sent it to the Union of India. Respondent 1 had learnt and which he believed to be true that the said three names were as follows in the order of merit:
Sriyuths:
1. C. Dinakar(1963);
2. R.K. Raghavan (1963);
3. Trinath Mishra.
8. It was then submitted that the Intelligence Bureau gave an incorrect adverse report about respondent 1 and the ACC acting on the report of the Intelligence Bureau denied the post of Director of CBI to respondent 1. On the basis of the above facts and grounds challenge was laid to the appointment of respondent 7. That respondent 1 had better merit than respondent 7. He had been awarded Meritorious Medal and Presidential Medal, whereas respondent 7 had been awarded Meritorious Medal only, That Sri R.K. Raghavan, had connection with the political leaders and in particular Ms. Jayalalitha, then C.M. of Tamil Nadu. Ms. Jayalalitha was not made a party respondent.
9. Union of India filed its statement of objection to the aforesaid application, in the counter-affidavit it was pointed out that the statements made by respondent 1 (paragraphs 4,5 and 4.19) with regard to the empanelment of respondent 1 as well as the fact that he was in the panel of three names recommended by the CBI Selection Board to the ACC was factually erroneous, and therefore, the whole basis of the application was on an incorrect factual premise. It was pointed out that the respondent 1 was considered by the concerned selection committee for inclusion in the panel of DGP at the Centre twice, the first time in 1996and again in 1998, but on both the occasions the committee did not recommend his name for inclusion in the panel for holding DG level post at the Centre. The requirement of empanelment was pointed out with reference to the Central Bureau of Investigation (Senior Police Post) Recruitment Rules, 1996 (for short, 'the 1996 Rules').
10. Reference was also made to the direction given by the Supreme Court with regard to the selection process for appointment of the Director, CBI and the consequential Office Memorandum issued by the Central Government dated 20-5-1998 wherein the procedure for selection was laid down consistent with the observations of the Supreme Court in Vineet Narain's case, supra. It was then stated in paragraph 5 of the preliminary submissions that with regard to the present appointment, the CBI Selection Board met on 11-11-1998, under the Chairmanship of the Central Vigilance Commissioner and that the ACRs and the service profiles of 33 IPS Officers belonging to the 1962, 1963, 1964 and 1965 batches and empanelled to hold the post of Director General of Police under the Central Government were considered. It was further stated that respondent 7 had been empanelled as DGP (Central) and considered for the post of Director, CBI along with other empanelled officers. Respondent 1 was not considered as he had not been empanelled as DGP (Central). The ACRs and service profiles of the officers were assessed on the basis of their seniority, integrity and their experience in investigation and anti-corruption work. A panel of three names indicated in the descending order of preference was prepared. The panel included the name of respondent 7. The aforesaid panel of names were thereafter sent to the ACC for its consideration and orders. ACC selected respondent 7 for the post of Director, CBI and consequential orders thereafter were issued. Respondent 7 took over as Director of CBI on 31st of December, 1998. In view of the above submission inter alia it was submitted that the application filed by respondent 1 was without merit and liable to be dismissed.
11. In view of the repudiation of the factual averment made by respondent 1 by the Union of India in its counter-statement regarding the empanelment of respondent 1 as DGP, Central under the 1996 Rules and his empanelment by the CBI Selection Board recommending him for the post of Director of CBI, respondent 1 filed Miscellaneous Application No. 147 of 2000 requesting that Sri Devegowda, the then Prime Minister be summoned to give evidence; for a direction to the CVC to produce the proceedings and other relevant records of the meeting of the committee under his Chairmanship held on 31st of October, 1998 and also file an affidavit touching upon this aspect; direct the Union of India, to produce the relevant files about the empanelment to the grade of DGP conducted during the years 1996,1997 and 1998 and permit respondent 1 to peruse all the records so produced. On the strength of the interview of CVC to 'Star News', respondent 1 had pleaded that the names had been prepared by the committee on 31st October, 1998. Sri H.D. Devegowda filed his affidavit. CVC in his affidavit stated that he had appeared on the 'Star TV News' on 30th October, 1998 and not on 31st October, 1998, as suggested by respondent 1; that he had indicated in the abovesaid interview that the OBI selection Board would be meeting the next day, i.e., 31st of October, 1998. CBI Selection Board held its meeting and took some preliminary decision but insofar as the question of recommending the panel for selection for appointment to the post of Director, CBI is concerned, no discussion or decision was taken on that day. The Selection Board held its meeting on 11th of November, 1998 on which date the decision regarding empanelment was taken. CVC specifically denied that he had stated in the interview to the 'Star News' that the CBI Selection Board under his Chairmanship held a meeting on 31-10-1998 and recommended a panel of three names for the post of CBI Director to the Government.
12. Though the Union of India had claimed privilege with regard to the proceedings of the meeting, but without prejudice to the claim of privilege, produced the proceedings of the meeting held on 31st of October, 1998 for the perusal of the Tribunal. The news clip of 'Star News' was screened before the Tribunal. On perusal of the proceedings of the meeting of the Selection Board held on 31st of October, 1998, the Tribunal concluded that:
'No panel of names was prepared on that date. Those proceedings show that no names were even considered on that date for preparing the panel for the post of Director, CBI'.
The Tribunal on 26th of April, 2000 passed an order, operative portion of which reads:
'As the question as to whether any panel was prepared on 31-10-1998 including the applicant's name is of vital importance, as a reading of the entire application would show that the applicant has sought for quashing the appointment of respondent 7 on that basis and as at this stage prima facie, from the proceedings of the meeting of 31-10-1998, we find that no panel at all was prepared on that date, we feel that question will have to be first considered and if the applicant is able to show that the panel was prepared on 31-10-1998 and submitted to the Government then we can consider the prayer of applicant for summoning records pertaining to the panels of DGP from 1996 onwards to investigate whether the applicant had been empanelled as DGP in 1997. As the applicant wants time to make available necessary material, this case is posted to 7-6-2000 for the applicant to place before the Tribunal the necessary material as indicated above. If the applicant is able to make out that a panel was prepared on 31-10-1998 and sent to the Government that the question of getting the relevant records regarding the empanelment as DGP from 1996 will be considered. It is open to the applicant if for any reason, he is unable to place material to show that a panel was prepared and sent on 31-10-1998, to convince the Tribunal, that still the applicant can challenge the appointment of respondent 7 on the basis of the facts and grounds urged in the original application. The question of privilege claimed by the respondentscould be considered thereafter if necessary. The documents are returned to the respondents Counsel'.
13. The Tribunal again heard the matter at length on 2nd of November, 2000 and while rejecting the prayers of respondent 1, it observed in paragraph 12 as under:
'Thus in the facts and circumstances of the case, as discussed by us above, we hold that the records pertaining to the empanelment of IPS Officers for the post of DGPS at the Centre are not relevant for determining the issues arising from the main O.A. filed by the applicant which does not question the manner in which the panels of IPS Officers had been prepared for the post of DGPS at the Centre for the relevant years of 1996,1997 and 1998. On the other hand, the main case of the applicant as is explicitly stated in the O.A., is that he was duly empanelled for the post of DGP at the Centre and that he was also included in the panel for the post of Director, CBI, at the meeting of the Selection Board held under the Chairmanship of the Central Vigilance Commissioner on 31-10-1998. Since we have satisfied ourselves that the applicant was not at all empanelled for the post of DGP at the Centre and further that he was not at all empanelled for the post of Director, CBI, by the Selection Board at the meeting held on 31-10-1998, where similarly no other officer was empanelled either, we do not consider it necessary or proper to make the records available to the applicant pertaining to the preparation of the panels of IPS Officers for the post of DGP at the Centre for the years 1996,1997 and 1998. In our considered view, there can be no requirement, applying the principles of natural justice in the special facts and circumstances of the present case, as discussed by us above, for the Tribunal to make available to the applicant the records pertaining to the empanelment of IPS Officers as DGPS at the Centre for the years 1996,1997 and 1998'.
14. In view of the above facts and the orders passed by the Tribunal nothing survived in the application. Respondent 1 was not empanelled as DGP at the Centre and, thus, there was no question of his name being on the panel prepared for the post of Director, CBI. Supreme Court in Sarabjit Singh v Ex-Major B.D. Gupta and Others, has held that an employee has a fundamental right to be considered for promotion only if he falls within the zone of consideration. The applicant could have a right to be considered for the post of Director, CBI post only if he had been empanelled as DG at the Centre. Scope of the application filed by respondent 1 was limited. Respondent 1 had not challenged his non-empanelment to the post of DGP, Central. Empanelment for the DG level post is done by a High Powered committee which is constituted pursuant to Government Order dated 19th February, 1993 and which consists of Cabinet Secretary, Principal Secretary to Prime Minister, Home Secretary, Secretary (Personnel) and Director, Intelligence Bu-reau. The empanelment is a pure and simple selection process where full autonomy has to be given to filter the best possible talent for such a sensitive post. Respondent 1 was considered twice, once in 1996, again in 1998 by the High Power committee for empanelment. Respondent 1 was not found fit. All these facts are noticed by the Tribunal in its two orders dated 26th April, 2000 and 2nd of November, 2000,
15. Respondent 1 who had appeared in person then argued before the Tribunal that the procedure for empanelment of DGP (Centre) and Selection of Director of CBI from the panel of DGP (Centre) was against the law laid down by the Supreme Court under Articles 141 and 142 in Vineet Naraiti's case, supra. Tribunal accepted this contention and held that the law laid down by the Supreme Court under Articles 141 and 142 is required to be given effect to implicitly by all authorities in the country which doubtlessly included all official respondents in the O.A. It was observed:
'It should be utterly pointless, in our considered view, to reiterate the totally unexceptionable and well-established position that when the law governing a matter is laid down by the Hon'ble Supreme Court by invoking specifically the constitutional provisions of Articles 141 and 142 thereof, the said law is required to be given effect to implicitly by all authorities in the country which doubtless include all the official respondents in the present O.A. Unless the Hon'ble Supreme Court make an exception in particular, all other executive instructions and rules must, by definition, be deemed to have been set aside as far as the latter seek to regulate or govern the same or similar matter /matters'.
(emphasis supplied)
It was held that limiting the consideration of the Selection Board (Committee), constituted by the Supreme Court, to only those IPS Officers who were first empanelled as DGPS at the Centre was unwarranted. It was observed that the very question of what should be the procedure for selection of an IPS Officer as the Director, CBI and, which committee should undertake that selection, and applying what criteria were precisely the questions which were decided by the Supreme Court in Vineet Narain's case, supra. Deviation from the procedure laid down by the Supreme Court could not be accepted. The matter was concluded by the Tribunal by observing thus:
'24. The result of the discussion made by us above is that the procedure followed by the CBI Selection Board which resulted in inclusion of the name of the 7th respondent in the panel comprising 3 names, based only on the consideration of the list of IPS Officers who have already been empanelled for the post of DGPS at the Centre, and communicated the Board as such by the Home Ministry, and not extending their consideration to all IPS Officers of a certain seniority, including the applicant, is directly violative of the rule laid down by the Hon'ble Supreme Court in this behalf.
26. The action of the CBI Selection Board in the present case, which has ultimately resulted in the appointment of the 7th respondent, while in the process not considering the case of the applicant at all can only be held as unsustainable in the circumstances and in the light of the law laid down by the Apex Court discussed by us in detail above. We have, therefore, no hesitation in quashing the appointment of the 7th respondent as the Director, Central Bureau of Investigation, under the order of the Government of India dated 31-12-1998. We do so accordingly'.
16. The only question which requires to be determined in this writ petition is whether the statutory rules and the executive instructions issued by the Government of India from time to time would be deemed to have been set aside by the Supreme Court in Vineet Narain's case, supra? If not, what is its effect?
17. To appreciate what was laid down by the Supreme Court in Vineet Narain's case, supra, it would be useful and relevant to refer to a few facts in the said case on the basis of which the directions were issued by the Supreme Court which fall for interpretation in the present case. On 25th of March, 1991, one Ashfak Hussain Lone, alleged to be an official of the terrorist organisation, Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central Bureau of Investigation (CBI) on the premises of Surender Ku-mar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two notebooks from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and out of power, and of high ranking bureaucrats. As nothing was done in the matter of investigating the Jains or the contents of their diaries, Vineet Narain filed a public interest litigation in the Supreme Court, alleging therein that the Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the 'Jain diaries'. That the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through 'havala' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the CBI and other Government agencies had failed to investigate the matter and take it to its logical conclusion and prosecute all persons who were found to have committed an offence. This was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved irrespective of where he was placed in the political hierarchy. On the pleadings of the parties the Supreme Court formulated two points:
(i) The first related to the investigation in the matter of 'Jain diaries';
(ii) The second related to the manner in which the investigation of offences of a similar nature that may occur hereafter should be conducted.
We are concerned with the second point.
18. Supreme Court drew the history of the CBI, how it came to be found etc. Relying upon the following observation of Lord Denning in R. v Metropolitan Police Commissioner :
'A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced. I think, either by action at the suit of the Attorney General; or by the prerogative order of mandamus'.
It was held:
'There can hardly be any doubt that the obligation of the police in our constitutional scheme is no less'.
The Court examined the powers of the Supreme Court as to what directions could be given. Relying upon the judgment in Vtskaka and Ors. v State of Rajasthan and Ors. , it was observed in paragraphs 56 and57:
'As pointed out in Vishaka's case, supra, it is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and if there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.
57. On this basis, we now proceed to give the directions enumerated hereafter for rigid compliance till such time as the legislature steps in to substitute them by proper legislation. These directions made under Article 32 read with Article 142 to implement the rule of law wherein the concept of equality enshrined in Article 14 is embedded, have the force of law under Article 141 and by virtue of Article 144, it is the duty of all authorities, civil and judicial, in the territory of India to act in the aid of this Court. In the issuance of these directions, we have accepted and are reiterating as far as possible the recommendations made by the IRC'.
19. Final directions in this regard were given in paragraph 63. Direction given to fill up the post of the Director, CBI is Direction No. 6. The other directions are: the Director of CBI should have minimum of 2 years, his transfers, freedom to allocate etc., with which we are not concerned. Paragraph 6 reads:
'Recommendations for appointment of the Director, CBI shall be made by a committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The view of the incumbent Director shall be considered by the committee for making the best choice. The committee shall draw up a panel of IPS Officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the committee asked to draw up a fresh panel'.
In terms of the directions issued by the Supreme Court, the Government of India issued an Office Memorandum No. 202/8/98-AVD.IIA), dated 20th of May, 1998. After reproducing the directions issued by the Supreme Court, in paragraph 1, the memorandum lays down the procedure to constitute a committee to be called the CBI Selection Board, with its composition, functions and procedure. Paragraph 2 of the said memorandum reads:
'2. It has been decided by the Government to accept the above recommendations. Accordingly, it is proposed to constitute a committee to be called the CBI Selection Board with its composition/functions and procedure as follows.-
A. Composition of CBI Selection Board
Central Vigilance Commissioner - Chairperson;
Home Secretary - Member;
Secretary (Personnel) - Member.
The incumbent Director shall be a permanent special invitee for meetings of the Board. He shall be consulted in all matters except in cases where extension or curtailment of his tenure is under consideration of the Board.
The Joint Secretary/Additional Secretary in the Department of Personnel and Training in charge of the administrative matters of the CBI shall be the Secretary of the Board.
B. Functions
(i) Making recommendations regarding selection on deputation, extension of tenure and premature transfer from the organisation of personnel of the rank of Joint Director and above in the CBI.
C. Procedure
(i) The Board shall draw up a panel of IPS Officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work, for appointment as Director/Special Director/Additional Director/Joint Director in the CBI. Incumbent Director shall be consulted in the matter of suggesting a list of suitable personnel for the preparation of the panel by the Selection Board. The consideration of suitable personnel by the Selection Board would not be restricted by the list suggested by the incumbent Director.
(ii) The Selection Board shall suggest a panel of 3 names in descending order of preference for consideration by the ACC. In the event of none among the panel being found suitable by the ACC, the Board shall draw up a fresh panel, keeping in view the reasons recorded by the ACC for non-acceptance of the first panel.
(iii) The decision of the Selection Board about extension or curtailment of tenure of incumbent personnel below the level of Joint Director shall be acted upon without reference to the ACC.
(iv) Insofar as personnel of the rank of Joint Director and above are concerned, the recommendation made by the Selection Board regarding extension of curtailment of the tenure shall be placed before the ACC for decision'.
20. Another fact which requires to be highlighted, and which would have a direct bearing on the present case is, the procedure adopted for making appointments of IPS Officers at the Centre, to man the Central agencies. Prime Minister on 19th of February, 1993 constituted the Selection Committees for considering the senior level appointments of IPS Officers at the Centre. The Letter dated 19th of February, 1993 reads:
'The Prime Minister has approved the constitution of the following Selection Committees for considering senior level appointments of IPS Officers at the Centre.-
(1) For the posts in the scale of Rs. 7300-7600 (instead of Central Police Establishment Board):
Cabinet Secretary;
Home Secretary;
Secretary (Personnel);
Director, Intelligence Bureau;
E.O. to be Secretary to the Committee.
(2) For the posts in the scale of Rs. 8.000/- (fixed):
Cabinet Secretary;
Principal Secretary to P.M.;
Home Secretary;
Secretary (Personnel).
Sd/-
(Mata Prasad)
Establishment Officer and
Additional Secretary to the
Government of India'.
21. President of India in exercise of powers conferred by proviso to Article 309 of the Constitution and in supersession of the Central Bureau of Investigation (Senior Police Posts) Recruitment Rules, 1975, framed the rules called Central Bureau of Investigation (Senior Police Posts) Recruitment Rules, 1996, (for short, 'the 1996 Rules'). Rules were to come into force from the date of the publication in the Official Gazette and the same were published in the Gazette on 31st of January, 1997. The rules were made applicable to posts specified in Column 1 of the Schedule annexed to the Rules. Method of recruitment to the said post, age limit, qualification and other matters relating thereto were specified in Columns 5 to 14 of the Schedule. Method of recruitment to the post of Director, CBI is given in Column 12 of the Schedule. The same reads as under:
'Transfer on deputation. Officers of Indian Police Service who have been approved for appointment as Director General of Police under the Government of India.
Note.--Deputation shall be regulated in terms of IPS tenure'.
22. The proved case of the parties is that neither respondent 1 was selected as DGP (Central) nor was he recommended by the CBI Selection Board, for the post of Director, CBI to the ACC. He was considered for empanelment to the post of DGP (Central) twice, the first time in 1996 and again in 1998, but on both the occasions, the committee did not recommend his name for inclusion in the panel for holding DG level post at the Centre. Case pleaded by respondent 1 was that since the post of Director, CBI was under the Government of India, only IPS Officers of various cadres were found fit and put on the panel of DGP (Central) were eligible for consideration. Once it is found that respondent 1 did not fall in the zone of consideration, the question of his being considered for the post of Director, CBI did not arise. Procedure for selection of DGP, Central was not under challenge. Submission of respondent 1 that his non-placement as DGP, Central was bad for lack of transparency in the procedure could not be accepted. Letter dated 19th of February, 1993 constituting the Selection committee for considering senior level appointments of IPS Officers at the Centre had also not been questioned.
23. In Vineet Narain's case, supra, as well procedure for selection of DGP, Central or that of Director of CBI from amongst the DGPS empanelled for Central posting was not questioned. 1996 Rules prescribing the method of limiting the zone of consideration of recruitment and classification from amongst the DGP (Central) for the post of Director, CBI, was also not under challenge. It seems that 1996 Rules were not even brought to the notice of the Supreme Court in Vineet Narain's case, supra.
24. Vineet Narain's case, supra, proceeds on the assumption that there were no rules on the subject. It was observed on this assumption that since the executive whose duty it was to fill the vacuum by executive orders; its field being coterminous with the legislature had also failed to do so, for whatever reason, the judiciary must step in exercise of its constitutional obligation under Articles 141 and 142 to provide a solution till such time as the legislature acts or performs its role by enacting proper legislation to cover the field. Supreme Court directed that the recommendation for appointment of Director of CBI, shall be made by a committee headed by CVC with the Home Secretary, Secretary (Personnel) as members. Further direction was that the view of the incumbent Director shall be taken into consideration by the committee for making the best choice. The committee shall draw up a panel of IPS Officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection was left to be made by the Appointments committee of the Cabinet from the panel of names recommended by the CBI Selection Board. This direction of the Supreme Court cannot be understood to mean that the Rules of 1996, or the executive instructions, would be deemed to have been set aside by the Supreme Court in Vineet Narain's case, supra, as observed by the Tribunal. At best it could only mean that the committee constituted to select the senior level police officers for the posts in the scale of Rs. 8,000/-(fixed) (in which category the post of Director of CBI falls), under the letter dated 19-2-1993 which consisted of Cabinet Secretary, Home Secretary, Secretary (Personnel), insofar as the selection for the post of Director, CBI was concerned, was replaced by a committee headed by a Central Vigilance Commissioner with Home Secretary and the Secretary (Personnel) as members. Restricting the zone of consideration to DGPS (Central) for the post of Director, CBI, was neither adverted to nor commented upon by the Supreme Court in Vineet Narain's case, supra. Otherwise also a careful reading of the direction of the Supreme Court would also suggest that the committee was constituted for drawing up the panel of IPS Officers for the post of Director, CBI on the basis of their seniority coupled with the other factors like integrity, experience in investigation and anti-corruption work. This could not mean to read that Director, CBI has to be selected from amongst the IPS Officers on the basis of their All India Seniority as has been held by the Tribunal. The directions of the Supreme Court in Vineet Narain's case, supra, regulating the appointment of the CBI Director is to be construed as being limited to the subsequent stage of selection from amongst the IPS Officers, who have already been empanelled for the post of DGP at the Centre by the concerned Selection Committee. The direction of the Supreme Court was to provide a process of selection of CBI Director with a view to insulate the sensitive post from political interference. It was not and could not have been the intention of the Supreme Court to impliedly set at naught the statutory rules framed under Article 309 of the Constitution and that too, without adverting to the same. The direction of the Supreme Court could be read as to provide for an additional step of filtration in the form of CBI Selection Board chaired by CVC i.e., in-be-tween the statutory procedure of empanelment of DGP and selection by ACC. Central Government has a number of organisations which are required to be manned and headed by IPS Officers and the persons empanelled for DGP, Central are very senior officers of the IPS Cadre. The suggestion that the committee was to draw up a panel for the post of Director of CBI from amongst the IPS Officers on the basis of their All India Seniority cannot be accepted.
25. Respondent 1 had challenged the appointment of Sri R.K. Raghavan on the premise that respondent 1 was empanelled as DGP at the Centre and also in the panel of three names prepared by the CBI Selection Board and that respondent 1 was denied the appointment to the post of Director, CBI due to extraneous reasons. His contention was not that the procedure was no longer followed in view of the decision of the Supreme Court in Vineet Narain's case, supra. The Tribunal failed to appreciate that the material on record established that the declaration made on affidavit by respondent 1 was proved to be false and the entire case on the basis of the so-called empanelment and the consideration of respondent 1 for the post of Director of CBI was totally devoid of any substance. Positive case pleaded by the Union of India before the Tribunal was that under 1996 Rules the grade from which promotion, deputation, transfer to the post of Director, CBI is to be made is from officers of IPS who have been approved for appointment as DGP under Government of India. The Tribunal has not even referred to these rules while holding that the decision in Vineet Narain's case, supra, would be deemed to have been set aside the executive instructions or rules to the contrary.
26. The 1996 Rules framed under Article 309 of the Constitution could not be held to have become invalid because of the decision in Vineet Narain's case, supra, because the 1996 Rules were neither referred to in that decision nor was there any challenge to their validity. The Supreme Court decision cannot be understood as having set aside or quashed the order without any argument or challenge. Neither has the Supreme Court specifically declared the rules as invalid. The statutory rules did not conflict with any of the directions or guidelines laid down by the Apex Court in Vineet Narain's case, supra. On the other hand prior to Vineet Narain's case, supra, the process of empanelment as DGP at the Centre and thereafter selection by ACC was the only procedure for selection of the CBI Director. The direction of the Supreme Court was only to lay down an additional selection process in-between the procedure for empanelment and selection by ACC.
27. The decision of the Supreme Court was implemented by the Government of India by adopting the procedure laid down therein vide O.M. dated 20th of May, 1998. Apart from the guidelines laid down by the Apex Court it was provided in paragraph 2-D of the office memorandum as under:
'D. General.-
This Selection Board shall make recommendations/decide matters strictly in accordance with the relevant rules, policy andguidelines having a bearing on the matter concerned. Recommendations regarding deviations from established policy, practices and guidelines require to be specifically brought to the notice of the ACC, giving reasons therefor. The decisions of the CBI Selection Board which involve relaxation of relevant rules, policy and guidelines shall be only recommendatory'.
To me it seems unconceivable that a person not found fit for being empanelled as Director General of Police at the Centre, as in the case of respondent 1 should be considered for being appointed to the relatively more sensitive and important post of Director, CBI. This would be totally irrational.
28. Tribunal has totally misread the judgment in Vineet Narain's case, supra. Tribunal has proceeded on the unwarranted assumption that the direction of the Supreme Court in Vineet Narain's case, supra, have the effect of setting aside the statutory rules which have been consistently followed for the purpose of determining the eligibility of the candidates to be considered for the post of Director, CBI. Vineet Narain's judgment, supra, lays down the procedure for selecting the most suitable candidate from those who are eligible but lays down no procedure for determining the zone of consideration. That is left undisturbed in Vineet Narain's case, supra.
29. Supreme Court in a Constitution Bench judgment in M/s. Ranchhoddas Atmaram and Another v Union of India and Others1, held that where the question was never required to be decided by the Court then any passing reference on that point could not be treated to be a decision on that point. To appreciate as to what has been held in M/s. Ranchhoddas case, supra, a few facts relevant to the controversy leading to the above observation of the Supreme Court are:
The petitioners and appellants in the said cases were found by the Customs authorities, in the proceedings under the Sea Customs Act, 1978, to have imported goods in breach of Section 19 of that Act. The petitioner had without authority imported gold of the value of Rs. 25,000/- and the appellant, steel pipes of the value of Rs. 1,28,182. The Customs authorities by independent orders, imposed a penalty of Rs. 5,000/- on the petitioner and of Rs. 25,630/- on the appellant for those offences under Item No. 8 of the Schedule to Section 167 of the Act. A contention was raised on behalf of the petitioner and the appellant that the orders of the Customs authorities were invalid as they imposed penalties in excess of Rs. 1000/-. It was contended that the maximum penalty that could be imposed under Item No. 8 in Section 167 is Rs. l.000A. This contention was based on two grounds, (i) it had been so held by the Supreme Court in Maqbool Hussain v State of Bombay, Babulal Amthalal Mehta v Collector of Customs, Calcutta and in F.N.Roy v Collector of Customs, Calcutta ; and (ii) that on a proper construction, Item No. 8 in Section 167 does not permit the imposition of penalty in excess of Rs. 1.000/-.
30. Supreme Court after referring to the facts in each of the cases cited before it, concluded that although the Court in earlier cases had held that the Customs Officers under Item No. 8 under Section 167 were invested with the power of adjudging confiscation, increased rates of duty or penalty but the question as to what could be the maximum penalty imposable under Item 8 in Section 167 had not arisen before the Supreme Court. The observations were made in a different context and were not intended to decide that the provision did not permit the imposition of higher penalty, regarding which no question had then arisen. That the judgment of the Supreme Court in Maqbool Hussain's Sain's case, supra, was not based on the question of imposing the maximum penalty which the Customs authority could impose. It was just an assumption by the Judges in Maqbool Hussain's case, supra, that the maximum penalty which could be imposed under Item No. 8 in Section 167 was Rs. 1,000/-. The question was neither argued nor discussed in the judgment at all. The High Courts had followed the judgments and had held that a maximum penalty permissible under Item No. 8 in Section 167 was Rs. 1,000/-. Overruling the judgment of the High Court, it was held:
'The fact is that the question was never required to be decided in any of these cases and could not, therefore, have been, or be treated as, decided by this Court'.
In other words, the Supreme Court held that once the question had not arisen before the Court, nor was the Court required to decide the same, then it could not be taken to have been decided by the Court. In Vineet Narain's case, supra, as well, it would be seen that the point regarding the validity or otherwise of 1996 Rules was not in question before the Supreme Court. It was neither raised nor decided. In the circumstances, we are of the view that Tribunal has erred in observing that 1996 Rules would be deemed to have been set aside in Vineet Narain's case, supra.
31. As stated in the earlier paragraph case pleaded by respondent 1 in his application before the Tribunal that he has been duly empanelled as DGP, Central putting him in the zone of consideration for the post of Director, CBI. His further case was that the CBI Selection Board constituted in compliance with the direction issued by the Supreme Court in Vineet Narain's case, supra, had put him in the panel and submitted the same for consideration of the ACC. That Sri R.K. Raghavan, who was less meritorious than respondent 1 was selected due to extraneous considerations. Tribunal returned the finding that he had neither been empanelled as DGP, Central nor was he put in the panel by the CBI Selection Board for the consideration of the ACC. On these findings respondent 1 turned around and challenged the process of DGP, Central and the selection by the CBI Selection Board for empanelling the officers for the consideration of the ACC. This was clearly beyond his pleadings.Tribunal accepted this contention which was beyond the pleadings and made out a new case entirely which had not been set out in the pleadings. It is not open to the Court to decide a question which did not form part of the pleadings and at which the parties are not at variance. Submission of respondent 1 that procedure followed in selection of CBI Director was not fair and proper or that it was not legal and in accordance with law cannot be accepted.
32. The view taken by the Tribunal is contrary and inconsistent to the pleadings of the parties. The argument raised by respondent 1 which was contrary and inconsistent with the pleadings set out in the application, is against the rules of equity and good conscience and prevent him from using it against his opponents. As observed by Chief Justice Garth in Ganges Manufacturing Company and Ors. v. Soitnijmull, it would be against the rules of equity and good conscience and it would operate as estoppel on a party. These findings were approved by the Supreme Court in Union of India and Others v M/s. Anglo Afghan Agencies. It was observed in paragraph (21):
'(21) In Ahmad Yar Khan v Secretary of State, the plaintiffs claimed title to a canal supplied with water from the Sutlej having been constructed at great expense by their predecessors for purposes of irrigation with the sanction and encouragement of the Government, partly on Government lands and partly on the lands of private owners under arrangements with them. It was held that the plaintiffs became proprietors of the canal and entitled to have the waters of Suttej admitted into it so long as it was used for the purpose for which it was originally designed. Similarly in Ganges Manufacturing Company's case, supra, Garth, C.J. observed that a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or . contention, which the rules of equity and good conscience prevent him from using as against his opponent'.
(emphasis supplied)
33. Supreme Court in Union of India v E.I.D. Parry (India) Limited, held that it is not open to the Court to decide the question which did not form part of the pleadings or in respect of which the parties were not at variance and which was not the subject-matter of an issue. Paragraph 4 of the judgment reads as under:
'The suit was filed for the recovery of excess demurrage allegedly charged by the appellant from the respondent. The claim depended upon the Goods Tariff Rules, specially the rule quoted above, which authorises the respondent to claim damages in respect of the entire block of wagons supplied to a party whichdoes not empty those wagons at the siding within the time permitted for that purpose. There was no pleading that the rule upon which the reliance was placed by the respondent was ultra vires the Railways Act, 1890. In the absence of the pleading to that effect, the Trial Court did not frame any issue on that question. The High Court of its own proceeded to consider the validity of the rule and ultimately held that it was not in consonance with the relevant provisions of the Railways Act, 1890 and consequently held that it was ultra vires. This view is contrary to the settled law that a question, which did not form part of the pleadings or in respect of which the parties were not at variance and which was not the subject-matter of any issue, could not be decided by the Court. The scope of the suit was limited. The pleadings comprising of the averments set out in the plaint and the defence put up by the present appellant in their written statement did not relate to the validity of the rule struck down by the High Court. The High Court, therefore, travelled beyond the pleadings in declaring the rule to be ultra vires. The judgment of the High Court, therefore, on this question cannot be sustained'.
Accordingly it is held that it was neither open to respondent 1 to raise a plea contrary to or inconsistent with his pleadings nor was it open to the Tribunal to adjudicate on a point which was neither pleaded nor was the subject-matter of dispute.
34. Respondent 1 strenuously argued that the Tribunal was not bound by the strict rules of pleadings, procedure laid down in the Code of Civil Procedure. For this he referred to Section 22 of the Administrative Tribunals Act which provides that the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, of the other Act and Rules provided therein. Even if the foundation of fact is not laid down in the pleadings before the Tribunal, regarding the procedure followed in the appointment of Director of CBI, the Tribunal could go into this question as it was open to it to formulate, its own procedure. I am not impressed by this argument. No doubt, the Tribunal for expeditious disposal of the case, could evolve its own procedure, but that does not mean that the Tribunal can adjudicate a point which is not the subject-matter of the dispute or record a finding on a question of fact or law for which the foundation of facts had not been laid by the parties.
35. Invoking the principle of sub-silentio, Sri Soli J. Sorabjee, Attorney General appearing for the petitioners argued that the directions issued by the Supreme Court in Vineet Narain's case, supra, did not by implication set aside the Rules of 1996, but in case it is taken to be so as observed by Tribunal then the same would be hit by the principle of sub-silentio. For this he placed reliance upon the judgment of the Supreme Court in State of Uttar Pradesh and Another v Synthetics and Chemicals Limited and Anr. The Supreme Court was examining the competence of the State Legislature with regard to levy of Central excise duty on industrial alcohol and scope of Entry 54 in List II. Allahabad High Court relying upon a Constitution Bench decision of the Supreme Court in Synthetics and Chemicals Limited v. State of Uttar Pradesh and Ors. , declared that the Uttar Pradesh Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976 to be null and void in so far as it purported to levy purchase tax on industrial alcohol. Reversing the decision of the High Court it was held that the law declared by the Supreme Court in second Synthetics and Chemicals Limited's case, supra, could not be taken to be the law declared by the Supreme Court under Article 141 as it was hit by the principle of sub-silentio. The decision which is not expressed and founded on reasons or which did not proceed on consideration of the issue could not be deemed to be a law declared to have a binding effect as contemplated under Article 141. Paragraph 42 of the judgment reads:
'42. Effort was made to support the conclusion, indirectly, by urging that the State having raised same objections by way of review petition and the same having been rejected it amounted impliedly as providing reason for conclusion. Law declared is not that can be culled out but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation. In the order of Brother Thommen, the extracts from the judgment of the Constitution Bench quoted in extenso demonstrate that the question of validity of levy of sales and purchase tax was neither in issue nor was it raised nor is there any discussion in the judgment except of course the stray argument advanced by the learned Attorney General to the following effect: (SCC page 139, para 43)
'But alcohol not fit for human consumption are not luxuries and as such the State legislatures, according to Attorney General, will have no power to levy tax on such alcohol'. Sales tax or purchase tax under Entry 54 is levied on sale or purchase of goods. It does not contemplate any distinction between luxury and necessity. Luxuries are separately taxable under Entry 62. But that has nothing to do with Entry 54. What prompted this submission is not clear. Neither there was any occasion nor there is any constitutional inhibition or statutory restriction under the legislative entry nor does the taxing statute make any distinction between luxuries and necessities for levying tax. In any case the Bench did not examine it nor did it base its conclusions on it. In absence of any discussion or any argument the order was founded on a mistake of fact and, therefore, it could not be held to be law declared. The Bench further was not apprised of earlier Constitution Bench decisions in Hoechst Pharmaceuticals Limited v. State of Bihar and Ganga Sugar Corporation Limited v.State of Uttar Pradesh, which specifically dealt with the legislative competence of levying sales tax in respect of any industry which had been declared to be of public importance. Therefore, the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol with utmost respect fell in both the exceptions, namely, rule of sub-silentio and being in per incuriam, to the binding authority of the precedents'.
(emphasis supplied)
36. I have held that the Supreme Court in Vineet Narain's case, supra, neither struck down the Rules of 1996 nor was the intention of the Supreme Court to strike down the rules. The directions of the Supreme Court in Vineet Narain's case, supra, provided an additional step in process of selection of CBI Director with a view to insulate the sensitive post from political interference. It was not and could not have been the intention of the Supreme Court to impliedly set at naught the statutory rules framed under Article 309 of the Constitution, and that too, without adverting to the same. The judgment of the Supreme Court cannot be read to mean that by implication it has set aside the Rules of 1996. The observations made in Vineet Narain's case, supra, did not point in that direction. The decision has not expressed nor founded on reasons regarding the validity of 1996 Rules. Therefore it could not deemed to be the law declared by the Supreme Court on this point. If it is to be taken as impliedly setting aside the Rules of 1996 as observed by the Tribunal, it would be hit by the principle of sub-silentio. Supreme Court in Vineet Narain's case, supra, was not even made aware of the 1996 Rules. The 1996 Rules were not even adverted to. The decision of the Supreme Court could not be taken to be a declaration of law having binding effect on the validity of 1996 Rules. This finding of ours is in the alternative.
37. Tribunal rejected the contention of respondent 1 that Sri R.K. Raghavan was appointed as Director, CBI, on extraneous consideration. Tribunal did not find any illegality in the appointment of Director, CBI, except the fact that the exclusion of respondent 1 from consideration, violated the guidelines laid down by the Supreme Court. Sri R.K. Raghavan had been empanelled as DGP, Central. CBI Selection Board after considering the record of 33 IPS Officers from batches 1962 to 1965 who had been empanelled as DGP at the Centre submitted a panel of three names to the ACC for being appointed as Director, CBI. CBI Selection Board had drawn up the panel after due deliberation and after assessing the comparative merit, experience and other relevant criteria while recommending the name of Sri R.K. Raghavan along with two others to ACC for its consideration. It could not be said that there was any arbitrariness or illegality in the selection of Sri R.K. Raghavan. Respondent 1 could not be considered for appointment to the post of Director, CBI as he did not fall within the zone of consideration. Ques-tion of his comparative merit vis-a-vis Sri R.K. Raghavan or any other IPS Officer who fell in the zone of consideration did not arise.
38. It has been held in number of judgments by the Supreme Court insofar as comparative merit is concerned the same has to be left to the body making the selection and we may refer to the following:
(i) Sant Ram Sharma v. State of Rajasthan and Ors.;
(ii) Dalpat Abasaheb Solunke and Ors. v. B.S. Mahajan and Ors.;
(iii) Union of India and Anr. v. Samar Singh and Ors.;
(iv) Union of India and Ors. v. Rajendra Singh Kadyan and Anr.
It has been noticed by the Tribunal in paragraph 23 of its order that the Courts did not enter into the discussion of the relative merits of candidates who have already been assessed by an expert and/or a duly constituted body or authority, and on the relevance of the duly prescribed zone of consideration for preparation of a final select list.
39. Respondent 1 argued before us that he had better merit than Sri R.K. Raghavan. That respondent 1 had received President's Medal as well as Meritorious Medal, whereas Sri R.K. Raghavan received only Meritorious Medal and that he had been adversely commented upon in the Verma Commission headed by the former Chief Justice, Sri J.S. Verma which was constituted as a fact-finding body to go into the facts leading to the murder of Sri Rajiv Gandhi, former Prime Minister of India. He read out the extracts from the report adversely commenting on Sri R.K. Raghavan. That Sri R.K. Raghavan had political connections particularly with Ms. Jayalalitha, who helped him in becoming the Director, CBI. All these points have been negatived by the Tribunal. This apart it was brought to our notice by the Attorney General that respondent 1 had extracted only these portions of the Justice Verma Commission Report which were adverse to Sri R.K Raghavan. At number of places Sri Raghavan had been praised for the good work done by him in the performance of his duty. Attorney General also brought to our notice that the Supreme Court in State through Superintendent of Police, CBI/SIT v. Nalini, which were the appeals filed in Rajiv Gandhi murder case had commended the work done by Sri R.K. Raghavan, then Inspector General of Police who was on duty at the time when Sri Rajiv Gandhi was murdered at Sriperambudur. It was observed in paragraph 639:
'We have also a word of praise for Mr. R.K. Raghavan, who was at the relevant time Inspector General of Police, Forest Cell(CID), Madras and was entrusted with the election arrangements in Chinglepet Range. He was on duty at the time the crime was committed at Sriperumbudur. He immediately realised the gravity of situation. He stayed on at the scene of crime, organised relief and ensured that material evidence was not tampered with. It was he who found the camera (M.O. 1) on the body of Haribabu which provided a breakthrough in the case'.
40. Although on the inter se merit between respondent 1 and Sri R.K. Raghavan or their suitability is not being examined by us but still we have put these facts in this order to keep the records straight.
41. This apart respondent 1 had filed W.P. No. 6361 of 2001 which was dismissed by this Court on 19-2-2001. The point regarding inter se merit of respondent 1 vis-a-vis Sri R.K. Raghavan and that Sri R.K. Raghavan was appointed on extraneous consideration was not raised in the said writ petition. These points were available to respondent 1 at the time when he filed W.P. No. 6361 of 2001. These points could and ought to have raised in the earlier writ petition. Since the same was not raised, it would be deemed to have been directly and substantially in issue in the earlier writ petition and hit by the principle of constructive res judicata. Explanation IV to Section 11 of the CPC reads thus:
'Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit'.
42. The Supreme Court in Forward Construction Company v. Prabhat Mandal (Regd.), Andheri, held that Explanation IV of Section 11 of the CPC is applicable in the writ proceedings as well and a matter which might and ought to have been made the ground for defence for attack in the former case, shall be deemed to have been a matter directly and substantially in issue in such suit. The point not taken earlier would be deemed to have been heard and decided. It was observed in paragraph 20 as under:
'20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 of the CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with thesubject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force'.
43. For the reasons stated above, this petition is accepted. The order of the Tribunal is set aside and is held that the appointment of Sri R.K. Raghavan as Director, CBI was in accordance with the Rules, direction issued by the Supreme Court and the M.O. No. 202/8/98-AVD.II(A), issued by the Government of India in pursuance to the direction issued by the Supreme Court of India in Vineet Narain's case, supra. Parties shall bear their own costs.