Once there is consultation, the content of that consultation is beyond the scope of judicial review, though the lack of effective consultation could fall within the scope of judicial review, it said.
A bench of Justices R K Agrawal and A M Sapre said the selection committee, which consists of high officials, had discussion with the CBI Director and considered relevant materials before taking the decision.
"In view of the foregoing discussion, we are of the considered opinion that the appointment of Rakesh Asthana -- Respondent No. 2 herein, to the post of Special Director, CBI does not suffer from any illegality. The writ petition fails and is dismissed," the bench said.
It said there cannot be any doubt that if the statute provides for consultation with any person before making a recommendation for appointment to any post, the consultation with that person has to be made.
"The question of giving primacy to the opinion expressed by the person with whom the consultation has to be made depends upon various factors.
"If there is no Selection Committee and the appointing authority is required to consult with some other statutory/ constitutional authority, then the question of giving primacy to the opinion expressed by the person with whom the consultation is to be made, exists," the bench said.
It said, however, in cases where a selection committee has been constituted and consultation has to be made with another person of the department for which recommendation for appointment is to be made, in that event, the consultation is only a process of discussion which has to be taken into consideration while making a recommendation and this cannot be said to have primacy.
"We cannot question the decision taken by the selection committee which is unanimous and before taking the decision, the Director, CBI, had participated in the discussions and it is based on relevant materials and considerations," the bench said.
Refuting the averments made by petitioner NGO Common Cause that a FIR was lodged on a firm which has association with Asthana, the bench said that even in the FIR, the name of Rakesh Asthana has not been mentioned.
"Thus, lodging of FIR will not come in the way of considering Rakesh Asthana for the post of Special Director, after taking into consideration his service record and work and experience," the bench said.
It said that media reports referred by the NGO in its petition and advocate Prashant Bhushan regarding Asthana's appointment were 'factually incorrect'.
The NGO in its petition had challenged Asthana's appointment, saying it was illegal as his name had surfaced in a diary recovered during a raid conducted by the Income Tax department at the offices and other premises of company Sterling Biotech Ltd.
The Centre had said that Asthana, who was earlier an additional director in CBI, was looking after its eleven zones and had supervised the investigation and trial of several scam cases, including Augusta Westland, Ambulance Scam, Kingfisher, Hassan Ali Khan, Moin Qureshi and coal scam cases.
It had said the selection committee had given good reasons for not accepting the contents of the letter submitted by the Director, CBI and recommended Asthana for appointment as CBI special director.
Photograph: Rakesh Asthana/Facebook
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