SLP 24328 of 2014
CAG Appointment

Summary :

In the matter of Shri N Gopalaswami & Ors. v Union of India, the petitioners in pursuance of public interest litigation challenged the appointment of the Comptroller and Auditor General of India (CAG) and sought for a transparent system of appointment of the CAG. The Hon’ble High Court of Delhi dismissed the petition and upheld the appointment of the CAG on the basis that it has been made as per past convention and also refused to direct the Government to frame a transparent procedure for selection. Aggrieved by the impugned order/judgement dated 13.08.2014, Common Cause alongside other petitioners filed an SLP in the instant case. 

The contentions raised by the petitioners were that the appointment of the CAG had been done arbitrarily by a procedure that does not stand the test of constitutionality. The process does not involve a selection committee, any criteria, transparency, call for applications or nominations and in fact was limited to civil servants only, a restriction not found in the Constitution. There was a gross violation of rule of law and several established precedents.

Prior to his appointment as CAG, Shashi Kant Sharma
held key positions in the Ministry of Defence that involved decision making power over purchases. As the CAG, he would be auditing the defence purchases sanctioned by him in his capacity as former Defence Secretary, creating a clear situation of conflict of interest and virtually making him a judge in his own cause. Further, there was no provision in the Constitution or in the CAG Act for a CAG to rescue himself in situations such a conflict of interest is present. As the office of CAG is a single-member body, the option of rescuing is not available.

Previously, the Court had observed in the CVC appointment case (CPIL Vs. UoI (2011) 4 SCC 1) that a person who is himself the subject of scrutiny, irrespective of his own personal integrity, would not be able to perform his duties impartially and held such an appointment to be illegal as it would not stand the test of institutional integrity and would affect the functioning of such an individual.

At the hearing on February 11, 2015, a forceful plea was made on behalf of the appellants comprising Mr. N. Gopalaswami, former Chief Election Commissioner, and 10 former senior public servants, including Mr. Kamal Jaswal, for prescription of an objective and transparent procedure for appointment to the high Constitutional office of the CAG.

Unfortunately, the Chief Justice's bench was unwilling to deviate from the literalist position taken by the Apex Court while disposing of the two earlier PILs on the subject and dismissed the SLP.  Further, no direction concerning a transparent selection procedure was made and the Court found the existing procedure proper. The Supreme Court agreed with the findings of the High Court and found no good ground for interfering with the impugned judgement and order.

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SLP 24328 of 2014
SLP 24328 of 2014 Order Date 11-Feb-2015