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IN THE HIGH COURT OF DELHI AT NEW DELHI

(CIVIL ORIGINAL JURISDICTION)

Writ Petition (Civil) No. ……of 2017

In the matter ofPublic Interest Litigation:

1. Energy Watchdog

Through its Secretary (Anil Kumar)

305, 2079/38, Nalwa Street, Karol Bagh

New Delhi-110 005 .........Petitioner

v/s

1. Union of India

Through its Cabinet Secretary

Cabinet Secretariat

New Delhi-110 004

2. Union of India

Through its Secretary

Ministry of Petroleum & Natural Gas

Shastri Bhawan

New Delhi-110 001

3. Central Vigilance Commission

Through its Secretary

Satarkata Bhawan

A-Block, GPO Bhawan

INA, New Delhi-110 023

4. Public Enterprises Selection Board

Through its Secretary

5th

floor, Block No.14

Public Enterprises Bhavan

CGO Complex, Lodhi Road

New Delhi-110 003

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5. Mr Shashi Shanker

S/o Shri Nand Jee Sahay

CMD, ONGC

R/o 2nd

floor, 5 Anand Lok

New Delhi

6. Dr Sambit Patra

S/o Shri Rabindra Nath Patra

R/o 1551, Deenanath Building,

Chandrawal Road, Clock Tower,

Kamla Nagar, New Delhi – 110007 ........ Respondents

A Writ Petition under Article 226 of the Constitution of India for

enforcement of rights under Articles 14 and 21 of the Constitution

seeking challenging the appointment of Respondent No. 5 and 6

To,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION

JUSTICES OF THE HON’BLE HIGH COURT OF INDIA

The Humble Petition of the

Petitioner above-named

MOST RESPECTFULLY SHOWETH: -

1. That the Petitioner is filing the instant writ petition in public interest.

The Petitioner has no personal interest in the litigation and the petition is

not guided by self-gain or for gain of any other person / institution / body

and that there is no motive other than of public interest in filing the writ

petition.

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2. That the Petitioner has based the instant writ petition on official

documents and correspondence which are part of official record.

3. That the petition, if allowed, would benefit the public exchequer and

which in turn would benefit the citizens of this country. Since these persons

are too numerous and have no direct personal interest in the matter, they

are unlikely to approach this Hon‟ble Court on this issue. Hence, the

Petitioner is preferring this PIL.

4. That the Petitioner is aggrieved by the appointments of the

Respondent No.5& 6 on the Board of ONGC. The Respondent No. 5 has

tainted past. The Petitioner has made complaints dated 21.07.2017 to the

Respondent Nos. 1 & 3 as well as the Prime Minister not to appoint the

Respondent No.5 as the CMD of ONGC. But it has not received any

response so far.It has also filed applications dated 31.07.2017 under the

RTI Act with the Respondent Nos. 2 & 3 on this issue.The Petitioner in this

writ petition has prayedfor directions to the Respondents No. 1 to 4 which

are against Respondents No.5& No.6. To the best of the knowledge of the

Petitioner, no other persons / bodies / institutions is likely to be affected by

the orders sought in the writ petition.

5. That the Petitioner is aggrieved by the appointments of the

Respondent No.5 & 6 on the Board of ONGC. The Respondent No. 5 has

tainted past. The Petitioner has made complaints dated 21.07.2017 to the

Respondent Nos. 1 & 3 as well as the Prime Minister not to appoint the

Respondent No.5 as the CMD of ONGC. But it has not received any

response so far. It has also filed applications dated 31.07.2017 under the

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RTI Act with the Respondent Nos. 2 & 3 on this issue. Copies of these

complaints and RTI queries have been filed in this Petition. The petitioner

has means to pay cost, if any, imposed by this Hon‟ble Court.

6. The Petitioner, Energy Watchdog, is a society registered under the

Societies Registration Act XXI of 1860 (Regn. No.: S/522/2013 dated

30.07.2013 at Delhi), and is sincerely working to protect the national

interest and the interest of the consumers in the energy sector. The present

petition is being filed in accordance with the „Aims & Objectives‟ defined

under clause No. 3(8) of Memorandum of Association of the Petitioner. The

said society has authorized its Secretary Shri Anil Kumar to file the present

petition on its behalf including appointing lawyer(s) and signing of

vakalatnama. The relevant extracts of the Society‟s MoA, its registration

certificate, and authorization letter are filed herein alongwith vakalatnama.

Since its inception, the Petitioner‟s annual expenses and income has never

exceeded Rs 93,000 per year. The income is contributed by its Members.

The Petitioner has also been filing its Annual Reports, including Annual

Returns, before the Registrar of Society from time to time.

7. That the Petitioner has established its credentials through various

PILs in the Hon‟ble Supreme Court, Hon‟ble Appellate Tribunal for

Electricity (APTEL) and various Electricity Regulatory Commissions across

India. Some of the recent cases, filed by the Petitioner as genuine public

interest litigant, are shown in the following table: -

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Appeal No. 124 of

2014

“Energy Watchdog vs

CERC & Others”

APTEL In this Appeal, the petitioner had

challenged the CERC‟s Order on

allowing compensatory tariff to Adani

Power Ltd. The Appeal was partially

allowed.

Appeal No. 125 of

2014

“Energy Watchdog vs

CERC & Others”

APTEL In this Appeal, the petitioner had

challenged the CERC‟s Order on

allowing compensatory tariff to Coastal

Gujarat Power Ltd (Tata group

company). The Appeal was partially

allowed.

Appeal No. 51 of 2016

“Energy Watchdog vs

UERC & Another”

APTEL In this Appeal, the Petitioner had

challenged the Order passed by

Uttarakhand ERC about higher tariff

order given to a private company

much above the cost at provisional

level. APTEL granted some time to

UERC for final tariff order and the

Appeal was withdrawn.

Civil Appeal No. 5399

& 5400 of 2016

“Energy Watchdog vs

CERC & Others”

Hon‟ble

Supreme

Court

The petitioner had challenged soem

part of APTEL‟s Order on

compensatory tariff allowing extra tariff

to Adani & Tata group companies. The

Appeal was allowed in favour of the

Petitioner.

Appeal No. 1 of 2017 APTEL The Petitioner has filed an appeal

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“Energy Watchdog vs

TNERC & Others”

challenging Tamil Nadu ERC‟s

decision to extend the control period of

solar tariff without reducing the tariff.

The Appeal has been admitted and is

at the final stage of hearing.

Civil Appeal No. 9928

of 2017

“Adani Green Energy

(Tamil Nadu) Ltd vs

Energy Watchdog &

Others”

Hon‟ble

Supreme

Court

Appeal filed against the decision of

APTEL in favour of the Petitioner was

challenged by Adani Green Energy

(Tamil Nadu) Ltd, which the Petitioner

vehemently opposed. The Appeal filed

by Adani was dismissed in favour of

the Petitioner.

IA No. 50/2017 in

Petition No.

18/SM/2015

“Energy Watchdog vs

Coastal Gujarat Power

Ltd & others”

CERC The Petitioner has intervened in a suo

moto petition initiated by CERC

against Tata bringing to their notice

the additional detailed facts related to

the corruption & illegalities in the

declaration of commercial operation of

Tata‟s power plant at Mundra. CERC

has issued notices. The hearing is at

initial stage.

Tariff Petition filed by

Greenko Budhil Hydro

Power Pvt Ltd

UERC The Petitioner hadfiled detailed

objections challenging a higher

provisional tariff to the private

company. The hearing is complete and

the final order is awaited.

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THE CASE IN BRIEF

8. That the Petitioner is filing the instant writ petition under Article 226 of

the Constitution of India seeking direction to the Respondents No.1 & 2 for

the cancellation of the following appointmentsmade by the Respondent

No.1 on the Board of Oil & Natural Gas Corporation (ONGC):

(a) the Respondent No.5 as the Chairman & Managing Director

(CMD) vide impugned Order dated 25.09.2017 and

(b) the Respondent No.6 as the Non Official Director (NOD) vide

impugned order dated 29.09.2017

Respondent No.6is the official National Spokesperson of the ruling Party

BJP at the Centre and is very active in day-to-day politics. He can be seen

almost daily on television screens defending his party‟s / Government‟s

position on various matters. As such he cannot play the role of an

Independent Director being “related to promoters”, which is in violation of

Section 149(6) of The Companies Act 2013. His selection process is also

flawed as his name did not appear in the Data Bank of eligible persons

willing to act as Independent Directors as required to be prepared for the

purpose as per Section 150 of the Companies Act, 2013. Moreover, State

largesse cannot be passed on to a private political person in this manner.

In ONGC, an Independent Director gets Rs 40,000 per day of sitting in a

Board meeting and Rs 30,000 per day for Board Committee meetings. As

per Annual Report 2016-17, there were three Independent Directors on the

Board for the full year, and their average remuneration per Independent

Director is Rs 23.36 lakh for FY 2016-17.

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Moreover, under pressure of the Central Government, ONGC has recently

bought 80 per cent equity stake for Rs 7,758 crore in the controversial

project established by Gujarat State Govt owned company GSPC. The said

State is also ruled by the same Political Party ie BJP to which the

Respondent No.6 belongs. This is yet another reason why the Government

is interested in pushing its own Party person on the Board of ONGC.

Respondent No.5 has a tainted past. On 23.02.2015, the Vigilance

Division of the Respondent No.2 (MoP&NG) had suspended him stating

that he

“has committed gross misconduct. The details of the charges will be

given in the charge sheet”.

The relevant part of his suspension order is reproduced below: -

(i) Shri Shashi Shanker, the then GGM & OSD to Director (T&FS)

and presently Director (T&FS), ONGC, while dealing with a tender

No.P4CEC10009 for Procurement of Twenty One Blowout

Preventers (BOP), has committed gross misconduct. The details

of the charges will be given in the charge sheet.

(ii) Shri Shashi Shanker has been associated with this tender initially

as GGM & OSD to Director (T&FS) and from 01.01.2012 as

Director (T&FS), ONGC. The competent authority has decided to

put him under suspension to ensure a fair and transparent inquiry

and to prevent tempering of evidences or documents.

A copy of the suspension order dated 23.02.2015 is filed herein and

marked as Annexure-P1 (……….. to ……….).

However, on 17.07.2015 the Respondent No.2 revoked his suspension

citing the Hon‟ble Supreme Court‟s general observation that a suspended

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officer should be reinstated if an agency fails to file charge-sheet within 90

days.

10. In the meantime, the Respondent No.4 (PESB) invited applications

for selecting a candidate for the post of CMD, ONGC in a specified format.

In this format an applicant has to disclose any disciplinary proceedings held

against him in the last 10 years. The Respondent No.5 too applied for it.

The Petitioner is not aware whether the Respondent No.5 disclosed his

suspension in his application or not. On 19.06.2017, the Respondent No. 4

conducted the interviews of total nine candidates. Usually, the PESB

announces its decision by 5.30 or 6.00 pm after a day-longexercise even if

it interviewed 12-15 candidates. In this case too, PESB initially had arrived

at a conclusion that there was no suitable candidate for the job and the

Secretary of the Respondent No.2 had returned to his ministry after this

decision.But, as soon as he reached his office, he was once again called

back to the PESB office, and finally at 07:15 PM a decision was taken to

make recommendation for the appointment of the Respondent No.5. The

said decision was posted on PESB‟s web site at about 07:30 PM, which is

verifiable from the web records.

A copy of the above stated PESB‟s recommendation dated 19.06.2017 is

filed herein and marked as Annexure-P2 (……….. to ……….).

11. The government has taken a decision to merge Hindustan Petroleum

Corporation Ltd (HPCL) into ONGC.The merged entity is likely to be a

much bigger organization worth $40 billion. The merger is likely to be

completed in this Financial Year.

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In this regard, a copy of the news clipping dated 13.07.2017 is filed herein

and marked as Annexure-P3 (……….. to ……….).

12. On 21.07.2017, the petitioner lodged complaints with the Respondent

Nos. 1 and 3 as well as the Prime Minister against the proposed move to

appoint a person with tainted past to the post of CMD, ONGC. A copy of

the complaint dated 21.07.2017 addressed to the Respondent No.1 is filed

herein and marked as Annexure-P4 (……….. to ……….), while the rest of

the complaints are similarly worded, are not being filed for the sake of

brevity.

In its complaints, the Petitioner said that the Respondent No. 5‟s

appointment is contrary to the public interest as an officer who was

suspended in a tender matter, should not be heading an organization which

has to deal with Rs 29,000 crore capex budget in the current financial year,

and about Rs 150,000 crore in the next five years. And after HPCL‟s

merger, it is going to be a much bigger organisation. Therefore, only an

officer of “impeccable integrity” shall be appointed for such posts.

13. In the latest development, as per a media report of 26.07.2017

published in The Economic Times, the Respondent No.3 (CVC) had sought

an explanation from the Respondent No.5 for planning to hire Rigs on

nomination basis, which was yet another case against him related to

procurement. This shows continuous vulnerability of the organization if it is

in the hands of tainted officers.

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A copy of the above stated news clipping dated 26.07.2017 is filed herein

and marked as Annexure-P5 (……….. to ……….).

14. After failing to get any response to its complaints, on 31.07.2017, the

Petitioner filed an Application with the Respondent No.2 (MoP&NG)

seeking following information under the RTI Act: -

“On February 23, 2015, the government had suspended Shashi

Shanker, Director (T&FS), ONGC in a tender matter that was being

investigated by the vigilance wing. A copy of his suspension letter is

attached herewith. Please provide copies of the complete files that

would show what happened afterwards and how he has been

reinstated. Please provide copy of the charge sheet. If the charge

sheet has not been issued, is the matter still pending. What is the

status of the investigation. Please provide copy of the CV that was

forwarded by the ministry to PESB for his interview for the post of

CMD, ONGC.”

A Copy of above stated RTI application dated 31.07.2017 is filed herein

and marked as Annexure-P6 (……….. to ……….).

The Petitioner is yet to get any response on its above stated RTI queries.

The Petitioner had also asked the Respondent No.2 to provide a copy of

the CV of the Respondent No.5 that was forwarded by the ministry to

PESB for his interview for the post of CMD, ONGC. This would have shown

whether he had disclosed his suspension or not. But, the Respondent No.2

has chosen to remain silent on this issue. The petitioner has filed the 1st

Appeal for not responding to the Application made under the RTI Act.

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15. On 31.07.2017, the Petitioner had also filed an Application with the

Respondent No.3 (CVC) seeking following information under the RTI Act: -

“On February 23, 2015, the government had suspended Shashi

Shanker, Director (T&FS), ONGC in a tender matter that was being

investigated by the vigilance wing. A copy of his suspension letter is

attached herewith. Please provide copies of the complete files that

would show what happened afterwards and how he has been

reinstated. Please provide copy of the charge sheet. If the charge

sheet has not been issued, is the matter still pending. What is the

status of the investigation. Please provide copies of all the Vigilance

Clearances that were issued by CVC to him since 23.02.2015.”

A Copy of the above stated RTI application dated 31.07.2017 is filed herein

and marked as Annexure-P7 (……….. to ……….).

16. While the response to the above query from CVC was awaited, the

Minister for Petroleum & Natural Gas while responding to a question in the

Rajya Sabha on this issue, on 09.08.2017 said,

“Shri Shashi Shanker was placed under suspension on 23.02.2015

and his suspension was revoked on 17.07.2015 in a case related to

procurement of Blow out Preventers in ONGC. The matter was

referred to Central Vigilance Commission (CVC), which after

examination of the matter, advised the matter to rest with regard to

Shri Shashi Shanker as there did not appear to be any direct role of

Shri Shashi Shanker in delay in award of contract. On the advice of

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CVC, it was decided to close the matter with the approval of

competent authority.”

A copy of the above stated reply dated 09.08.2017 is filed herein and

marked as Annexure-P8 (……….. to ……….).

17. But, the above stated response in the Rajya Sabha was completely

different from what the response the Petitioner received under the RTI Act

from the CVC. In its response dated 22.08.2017, the CVC provided a copy

of the Vigilance Clearance dated 07.07.2017 issued in favour of the

Respondent No.5, and it had also said

“information sought by the applicant is not available with this public

authority.”

It means that the CVC did not have any information related to the

suspension of the Respondent No.5.

A copy of the reply dated 22.08.2017 is filed herein and marked as

Annexure-P9 (……….. to ……….).

18. However, on 25.09.2017, the government issued the impugned order

appointing the Respondent No.5 as the CMD, ONGC. A copy of the

impugned Order dated 25.09.2017 is filed herein and marked as

Annexure-P10 (……….. to ……….).

19. Thereafter, the petitioner received a response from MoP&NG to its

1st RTI Appeal in which a copy of the letter dated 23.08.2017 was also

attached, which the petitioner had never received earlier. This response

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denied information. A copy of the reply dated 25.09.2017 received from

MoP&NG is filed herein and marked as Annexure-P11 (……….. to

……….).

20. Tender brief

20A. A brief detail of the tender matter in which the Respondent No.5 was

suspended is as follows. On 20.07.2010 ONGC had invited a tender for

buying Blow Out Preventers (BOP) for its offshore projects. On 11.03.2011,

the technical bids of three companies were opened. These were Cameron

France; Continent Project Technologies Pvt Ltd, Singapore; and Worldwide

Oilfield Machine, Dubai (WOM). Two companies - Continent Project and

WOM - were shortlisted and their bids were opened on 15.12.2011. WOM

emerged as the lowest bidder.

20B. Instead of placing order on WOM, an Executive Procurement

Committee(EPC) in ONGC desired that the safety of similar projects

handled by WOM should be certified by a third party inspection agency.

This too was done in June 2012. But, EPC formed another committee for

re-verifying the suitability of WOM‟s offer and desired that a policy be

formulated on how to deal with the procurement of old v/s new BOP. Fed

up with this delay, on 14.11.2013 WOM made a complaint to Internal

External Monitor (IEM). On 31.03.2014 IEM said that the company met all

the criteria, and even subsequent additional requirements of ONGC.

Despite this, ONGC did not place the order, and WOM had to complain

again to IEM on 26.08.2014. On 16.10.2014, IEM reiterated its earlier

findings.

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20C. The Vigilance Wing of the Respondent No.2 found that the tender

was led by the Respondent No. 5, who was also earlier the Chief General

Manager handling this matter. In its 461st meeting held on 03.02.2015, the

Executive Committee of ONGC approved placement of order on WOM.

Finally, the Respondent No.5 was suspended. After his suspension, WOM

received the orders.

Respondent No.6

21. That the Non-Official Directors (NOD) or Independent Directors on

the Board of Central Public Sector Undertakings (CPSUs) are appointed as

per the provisions of Section 149 & 150 of The Companies Act, 2013 as

per the procedure specified by the Government. Copy of the procedure

specified on the web site of Department of Public Enterprises (DPE) as

downloaded by the Petitioner on 13.10.2017 is filed herein and marked as

Annexure-P12 (……….. to ……….).

22. That the Respondent No.1 in utter disregard to the Sections 149 &

150 of The Companies Act, 2013 and procedure prescribed by the

government under Section 150 of The Companies Act, 2013, has vide its

impugned order dated 29.10.2017 appointed the Respondent No.6 as the

NOD of ONGC.

23. That it is submitted that the Respondent No. 6 is the official National

Spokesperson of the ruling Party BJP at the Centre and is very active in

day-to-day politics. He can be seen almost daily on television screens

defending his party‟s / Government‟s position on various matters. As such

he cannot play the role of an Independent Director being “related to

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promoters”, which is in violation of Section 149(6) of The Companies Act

2013. The relevant provision Section 149 is reproduced below: -

149. Company to have Board of Directors

(6) An independent director in relation to a company, means a

director other than a managing director or a whole-time director or a

nominee director,—

(b) (i) who is or was not a promoter of the company or its holding,

subsidiary or associate company;

(ii) who is not related to promoters or directors in the company,

itsholding, subsidiary or associate company;

(c) who has or had no pecuniary relationship with the company, its

holding, subsidiary or associate company, or their promoters, or

directors, during the two immediately preceding financial years or

during the current financial year;

24. That is is further submitted that the Respondent No.6‟s selection

process is also flawed as his name did not appear in the Data Bank of

eligible persons willing to act as Independent Directors as required to be

prepared for the purpose as per Section 150 of the Companies Act, 2013.

The relevant part of this Section is reproduced below: -

150. Manner of selection of independent directors and

maintenance of databank of independent directors.

(1) Subject to the provisions contained in sub-section (5) of section

149, an independent director may be selected from a data bank

containing names, addresses and qualifications of persons who

are eligible and willing to act as independent directors,

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maintained by any body, institute or association, as may be by

notified by the Central Government, having expertise in creation

and maintenance of such data bank and put on their website for

the use by the company making the appointment of such

directors:

Provided that responsibility of exercising due diligence before

selecting a person from the data bank referred to above, as an

independent director shall lie with the company making such

appointment.

(3) The data bank referred to in sub-section (1), shall create and

maintain data of persons willing to act as independent director in

accordance with such rules as may be prescribed.

(4) The Central Government may prescribe the manner and

procedure of selection of independent directors who fulfill the

qualifications and requirements specified under Section 149.

25. That it is further submitted that the Respondent No.6‟s date of birth is

13.12.1974. He passed his Master of Surgery (MS) from SCB Medical

College Cuttack, Utkal University in 2002.Later, he joined as a doctor in

Bara Hindu Rao Hospital in Delhi. Thereafter, he had contested the

Election to the Municipal Corporation of Delhi (MCD) in 2012 on the BJP

ticket. Between 2002 and 2012, he must have been a doctor and thus has

10 years or less of experience. He does not meet any of the criteria of

experience specified by the government for NoD as stated below: -

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Downloaded from DPE’s web site (on 13.10.2017)

Criteria laid down by the Government for consideration as non-

official Director

A. (a) Criteria of Experience

i. Retired Government officials with a minimum of 10 years

experience at Joint Secretary level or above.

ii. Persons who have retired as CMD/CEOs of CPSEs and

Functional Directors of the Schedule-A CPSEs. The ex-

Chief Executives and ex-Functional Directors of the CPSEs

will not be considered for appointment as non-official

Director on the Board of the CPSE from which they retire.

Serving Chief Executives/Directors of CPSEs will not be

eligible to be considered for appointment as non-official

Directors on the Boards of any CPSEs.

iii. Academicians/Directors of Institutes/Heads of Department

and Professors having more than 10 years teaching or

research experience in the relevant domain e.g.

management, finance, marketing, technology, human

resources, or law.

iv. Professionals of repute having more than 15 years of

relevant domain experience in fields relevant to the

company’s area of operation.

v. Former CEOs of private companies if the company is (a)

listed on the Stock Exchanges or (b) unlisted but profit

making and having an annual turnover of at least Rs.250

crore.

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vi. Persons of eminence with proven track record from

Industry, Business or Agriculture or Management.

vii. Serving CEOs and Directors of private companies listed on

the Stock Exchanges may also be considered for

appointment as part-time non-official Directors on the

Boards of CPSEs in exceptional circumstances.

26. That it is further submitted that the Respondent No.6 could have

been considered for appointment by the Selection Committee only in case

if his name would have been on the Data Bank of the DPE. The Selection

Committee chooses from a panel of atleast three candidates prepared and

submitted by the administrative ministry. But, in his case the selection was

made in most in haste in a single sitting without following and due &

legitimate process. The process as specified by DPE is reproduced below:-

Downloaded from DPE’s web site (on 13.10.2017)

Process of appointment of non-official Directors on the Boards

of CPSEs

The proposals for appointment of non-official Directors on the Boards

of CPSEs are initiated by the concerned Administrative Ministries /

Departments. The selection of non-official Directors is made by the

Search Committee. The present composition of the Search

Committee is as under.

1. Secretary (DoPT) - Chairman

2. Secretary, DPE

3. Secretary of the concerned Administrative Ministry/Department

4. Two non-official Members:

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Mrs. Pratima Dayal, IAS (Retd.), Former Principal

Economist, India Residence Mission, ADB; and

Prof. Ravichandran Narasimhan, Former Director, IIM,

Indore Member and presently Professor, IIM Ahmedabad

The concerned Administrative Ministry / Department appoints the

non-official Directors on the basis of recommendations of Search

Committee after obtaining the approval of competent authority.

27. That the State largesse cannot be passed on to a private political

person in this manner. In ONGC, an Independent Director gets Rs 40,000

per day of sitting in a Board meeting and Rs 30,000 per day for Board

Committee meetings. As per Annual Report 2016-17, there were three

Independent Directors on the Board for the full year, and their average

remuneration per Independent Director is Rs 23.36 lakh for FY 2016-17.

28. That under pressure of the Central Government, ONGC has recently

bought 80 per cent equity stake for Rs 7,758 crore in the controversial

project established by Gujarat State Govt owned company GSPC. The said

State is also ruled by the same Political Party ie BJP to which the

Respondent No.6 belongs. This is yet another reason why the Government

is interested in pushing its own Party person on the Board of ONGC.

29. The appointments of Respondent No. 5 & 6 are in violation of the

principle of “institutional integrity”. Hon‟ble Supreme Court in the judgment

concerning appointment of CVC in Centre for Public Interest Litigation &

Anr. Vs Union of India & Anr (2011) 4 SCC 1, had enunciated this principle:

“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

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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 law.

The HPC must also take into consideration the question of institutional

competency into account. If the selection adversely affects institutional

competency and functioning then it shall be the duty of the HPC not to

recommend such a candidate. Thus, the institutional integrity is the

primary consideration which the HPC is required to consider while

making recommendation under Section 4 for appointment of Central

Vigilance Commissioner. In the present case, this vital aspect has not

been taken into account by the HPC while recommending the name of

Shri P.J. Thomas for appointment as Central Vigilance Commissioner.

We do not wish to discount personal integrity of the candidate. What we

are emphasizing is that institutional integrity of an institution like CVC

has got to be kept in mind while recommending the name of the

candidate. Whether the incumbent would or would not be able to

function? Whether the working of the Institution would suffer? If so,

would it not be the duty of the HPC not to recommend the person.”

30. That the Petitioner has not filed any other writ, complaint, suit or

claim in any manner on the issue raised in this petition, in this Hon‟ble

Court or in the Hon‟ble Supreme Court or in any other Court throughout the

territory of India. The Petitioner has no other better remedy available.

GROUNDS

A. Because the impugned appointmentsof Respondent No. 5 and 6 is

completely arbitrary, unreasonable, mala fide and in violation of

Articles 14 & 21 of the Constitution of India. The impugned

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appointments are also in violation of the principles of “institutional

integrity” and “impeccable integrity”.

B. Because the Respondent Nos. 1 to 4have failed to take any action to

stop appointment of the tainted Respondent No.5 to the top post of

ONGC despite complaints dated 21.07.2017by the Petitioner.;

C. Because the Respondent No.3 (CVC) in response to the Application

dated 31.07.2017 filed by the Petitioner has disclosed that it has no

information about the suspension of the Respondent No.5, yet it

issued Vigilance Clearance in favour of the Respondent No.5;

D. Because the information provided by CVC and as stated by the

Minister for Petroleum & Natural Gas in the Rajya Sabha contradict

each other; while CVC says it has no information, but the Minister

says, the CVC has given clean chit to the Respondent No.5 in the

suspension matter;

E. Because even as late as July 2017, the Respondent No.3 (CVC)

reprimanded the Respondent No.5 in another procurement matter,

yet it issued Vigilance Clearance in favour of the Respondent No.5;

F. Because the Respondent No.2 (MoP&NG) has declined to provide

any information to the Petitioner under the RTI Act which means, the

government is hiding crucial information related to the appointment of

Respondent No.5;

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G. Because the citizens of the country have right to know what

transpired between suspension and issuance of Vigilance Clearance

in such a high profile appointment;

H. Because the appointment of Respondent No.6 is in violation of

Sections 149 & 150 of The Companies Act, 2013 and also in violation

of the selection process specified by the government;

I. Because the prevailing corruption in the country in high places and

the unwillingness of the government to ensure a clean and

accountable system seriously impairs the right of the people of this

country to live in a corruption free society. This is violation of Article

21 of the Constitution. The right to life guaranteed to the people of

this country also includes in its fold the right to live in a society, which

is free from corruption.

Prayers: -

In view of the facts & circumstances stated above, it is most respectfully

prayed that this Hon‟ble Court in public interest may be pleased to: -

(i) Issue an appropriate writ setting aside the appointment of

Respondent No.5 to the post of CMD, ONGCmade by

Respondent No. 1 & 2 vide DOP&T‟s Information Note dated

25.09.2017;

(ii) Issue an appropriate writ setting aside the appointment of the

Respondent No.6 to the post of Non Official Director of ONGC

35

made by Respondent No. 1 & 2 vide DOP&T‟s Information Note

dated 29.09.2017;

(iii) Issue an appropriate writ directing the Respondent No.3 (CVC) to

produce complete record related to the Respondent No.5 leading

to his suspension vide order dated 23.02.2015 and issuance of

Vigilance Clearance dated 07.07.2017;

(iv) Issue an appropriate writ directing the Respondent No.2

(MoP&NG) to produce complete record related to the Respondent

No.5 leading to hissuspension vide order dated 23.02.2015 and

subsequent development in the matter;

(v) Issue an appropriate writ directing the Respondent No.4 (PESB)

to produce complete record related to the Respondent No.5

application including his CV and grading awarded by PESB of all

the nine candidates interviewed;

(vi) Issue an appropriate writ directing the Respondent No.2

(MoP&NG) to produce complete record related to the appointment

of Respondent No.6;and

(vii) Pass any other relief as this Hon‟ble Court may find appropriate in

the facts & circumstances of the case.

Petitioner Through

Prashant Bhushan Counsel for the Petitioner

Drawn By: Pranav Sachdeva Drawn and Filed On: October 2017 New Delhi

36

IN THE HIGH COURT OF DELHI, AT NEW DELHI

(CIVIL ORIGINAL JURISDICTION)

Writ Petition (Civil) No. ....... of 2017

In the matter of Public Interest Litigation:

Energy Watchdog … Petitioner

VERSUS

Union of India & Others … Respondents

A F F I D A V I T

I, Anil Kumar, aged 54 years, S/o Late ShriPiareLal,Secretary of the

petitioner Energy Watchdog, having its office at 305, Lotus Chamber,

2079/38, Nalwa Street,Karol Bagh, New Delhi-110005, do hereby solemnly

affirm and state on oath as under:

1. That I am the Secretary of the Petitioner in the aforementioned writ

petition and being familiar with the facts and circumstances of the

case, I am competent and fully authorized to swear this Affidavit. The

Petitioner is a society registered under the Societies Registration Act

(Regn. No.: S/522/2013 dated 30.07.2013 at Delhi). I am authorized

under the Rules of the Society to file petitions on its behalf.

2. I have filed the present public interest litigation.

3. I have gone through the Delhi High Court (Public Interest Litigation)

Rules, 2010 and do hereby affirm that the present Public Interest

Litigation is in conformity thereof.

4. I have no personal interest in the litigation and neither myself nor

anybody in whom the petitioner is interested would in any manner

37

benefit from the relief sought in the present litigation save as a

member of the General Public. This petition is not guided by self-gain

or gain of any person, institution, body and there is no motive other

than of public interest in filing this petition.

5. I have done whatsoever inquiry/investigation which was in my power

to do, to collect all data/material which was available and which was

relevant for this court to entertain the present petition. I further

confirm that I have not concealed in the present petition any

data/material /information which may have enabled this court to form

an opinion whether to entertain this petition or not and/or whether to

grant any relief or not.

DEPONENT

VERIFICATION:

I, the above named Deponent, do hereby verify that the contents of the

above Affidavit are true and correct to my knowledge, no part of it is false

and nothing material has been concealed there from.

Verified at New Delhi on this…… day of October 2017.

DEPONENT