Delhi High Court Reserves Judgment On Plea Against Appointment Of Rakesh Asthana As Delhi Police Commissioner

The Bench of Chief Justice DN Patel and Justice Jyoti Singh will also pronounce order on the intervention application filed by Centre for Public Interest Litigation, challenging Asthana's appointment. CPIL has alleged that Alam's plea is a "copy-paste" of the petition filed by CPIL before the Supreme Court.

The Bench heard Advocate BS Bagga for the Petitioner, Advocate Prashant Bhushan for CPIL, SG Tushar Mehta for the Centre and Senior Advocate Mukul Rohatgi for Rakesh Asthana.

Earlier, CPIL had approached the Supreme Court with the matter, upon which the Top Court on August 25 relegated the petitioner to the Delhi High Court, and requested the High Court to decide the matter expeditiously within 2 weeks.

Petitioner/ Intervenor Submissions

The counsels appearing for the Petitioner and the intervenor have opposed Asthana's appointment on the following grounds:

• Asthana did not have a minimum residual tenure of six months;
• No UPSC panel was formed for the appointment of Delhi Police Commissioner;
• The criteria of having a minimum tenure of two years had been ignored; and
• He has surpassed the super-time scale for inter-cadre deputation.

Supertime Scale

Supertime scale is a grade pay to DIG on completion of 14 years and to IG after 18 years. As per the intervenor, CPIL, represented by Advocate Prashant Bhushan, Asthana is at pay band 17 whereas a person is eligible for inter-cadre deputation only after completion of 9 years of service in his or her cadre and before reaching pay of Level 14 of the Pay Matrix in his or her home cadre.

Thus, Bhushan argued,

"Asthana has already reached supertime scale so there is no question of inter-cadre deputation here. As per the latest Office Memorandum issued by the Union of India, inter-cadre deputation can be done till Pay Scale 14. He is on scale 17, which is the highest."

Appointment to be made from panel selected by UPSC

Bhushan argued that as per the guidelines issued by the UPSC following the case of Prakash Singh v. Union of India,

"The appointment has to be made from the three persons selected by UPSC for this purpose. So first, UPSC must prepare a list of officers who are empaneled on the basis of length of service, range of experience, etc. In this case, no role is played by UPSC. It is not even consulted. This is another violation."

He added while the Centre claims that Prakash Singh judgment is not applicable only to DGPs appointed in States, however, the Supreme Court contemplated a situation where Police Chief may not be DGP but Commissioner. That's why it included Union Territories.

"Merely because operative direction says "DGP", does not mean it's not applicable to Commissioner. The entire judgment talks about Police Chief in general."

Residual Tenure

Another ground pleaded by the intervenor is that Asthana did not have a minimum residual tenure of six months, which is a must under applicable statutory Rules.

"His name was rejected as CBI Director because a person must have minimum residual tenure of 6 months.

There are 3 violations. First, UPSC is not consulted. Second, he is appointed for 1 year when it has to be for 2 years. Third, he does not have residual tenure of 6 months which is a must for appointment as Police Chief."

Appointment should be made from AGMUT Cadre

Bhushan argued that non-appointment of the Delhi Police Commissioner from the AGMUT cadre will have a deleterious effect. He submitted,

"To justify this inter-cadre appointment, Centre says that there is no officer in AGMUT cadre who is competent enough to be appointed as Delhi Police Commissioner. In the whole country, Asthana is only officer they could find who is fit to be appointed to that post?

I'd understand if UPSC said this. But where is the question of Centre deciding? This will have a demoralizing effect on AGMUT cadre; none of them is competent? Govt had to bring a person from Gujarat, that too 4 days before retirement?"

Criteria of minimum tenure of two years ignored

Lastly, Bhushan argued that appointment of DGP has to be purely on merits, for 2 years of service, regardless of superannuation. But Asthana is given 1 year extension.

He added that appointment of officers who are on verge of retirement is impermissible

It was submitted that as per Rules, no appointment can be made after retirement. There are however certain exceptions for relaxation for short duration like 3 months. But this is in case the incumbent officer is caring on some very important work.

"It does not mean Govt can bring an altogether new person from different cadre. Such relaxation is not permitted, that too to the post of Police Chief," Bhushan said.

He cited the case of Syed Khalid Rizvi v. Union of India to claim that 'undue hardship" means hardship for the officer, not the Govt.

"4 days before retirement, you bring a person, inter-cadre, then appoint him as police chief, all on the same day in violation of everything that you had yourself been saying? This is grossly illegal," Bhushan argued.

Govt's Stand

Solicitor General Tushar Mehta highlighted eight appointments have been made in the past following similar procedure. However, none of them were challenged by the Petitioners and it is only Asthana's appointment that is bothering them.

He submitted that the Petitioners may have some personal vendetta but PIL is not a forum for settling scores.

"This is a motivated petition. During entire arguments, Petitioner and Intervenor kept saying there are other competent officers. Who are these officers? Are they the real contenders?"

He added,

"This has become an "industry of vested interests" in litigation. They are challenging every appointment. It has become a career in itself."

The SG stated that there is plethora of judgments of Supreme Court saying that PIL is not maintainable in service matters.

Prakash Singh judgment applies to "State" not UTs

The SG claimed that the final operative directions issued by the Supreme Court in the case of Prakash Singh were applicable to State for appointment of DGPs. He submitted,

"Supreme Court ordered that the directions would apply the to the Centre, State and UTs, "as the case may be". So, all directions are not applicable to UTs."

He added that the judgment was delivered in 2006 and thus, it is relevant to note how the stakeholders have interpreted it over a period of time.

He cited the Doctrine of contemporanea expositio: if a particular provision of a statute has been interpreted in a particular way for a long period of time, that becomes the law.

"Petitioners are not relying upon any Law but on judgment. How stakeholders like Union of India, UPSC, etc. have interpreted it indicates what this judgment has been accepted to mean. Guidelines issued by UPSC after Prakash Singh judgment have been followed. These guidelines were placed before SC and nobody objected that it is a wrong understanding," the SG said.

Delhi has special status; Appointment made after thorough examination

SG Mehta argued that Delhi being national capital has its own characteristic factors which do not exist in other commissionerate. Any incident happening here has far-reaching impacts beyond borders. Thus, one cannot compare Delhi Police Commissioner with any other...

Responding to Advocate Bhushan's contention that this appointment will have demoralizing effect on AGMUT Cadre, the SG responded that Asthana was appointed as the Delhi Police Chief after "thorough examination".

He stated Delhi does not have a full-fledged cadre and thus, as sought by the Petitioner, it is not possible to have a panel of three officers selected by UPSC, from where the Centre may select the most suitable candidate.

"Delhi has a different status. It is a UT with a legislature. Now Delhi is of AGMUT cadre. There is no sanction cadre post for Delhi for Police Chief. So its impossible to have a panel of three. That's why SC said "AS THE CASE MAY BE"

In AGMUT cadre there can never be sufficient Pay level 16 DG rank officers available in one segment with 30 years service and 6 months residual tenure, for their empanelment by UPSC. That is why UTs are out of purview of Prakash Singh"

He added that it is only in Delhi that highest sanctioned post is in Pay-Level-17. Apart from Delhi Police Commissioner, for all other segments the level of Police Head is below pay level 17.

"Since long, since 1978 this is the position. It is not that it's done for this person."

He further submitted that Petitioner's submission that only pay band 14 officers can be appointed on inter-cadre deputation is wrong. In this regard, he cited a Memorandum issued by DoPT on 28th June, 2018 which he says contemplates relaxation of this pay scale condition.

"There is no special relaxation granted to Asthana. The Central Government has been time and again granting inter-cadre deputation to officer who have attained pay level 14. It's not something that has happened for the first time.

Neither there is lack of competence in Govt to grant inter-cadre deputation to IPS officer above pay-level 14 nor there is no procedural irregularity in granting inter-cadre deputation to Asthana to head the Delhi Police.

The 2018 OM is not under challenge. It anyway cannot be challenged by a PIL petitioner but only by affected persons."

It was submitted that there may be officers of the AGMUT Cadre that were considered by the authority, however, after taking into account all the factors including the peculiar situation of the national capital, the impugned decision was finalized.

"Govt was faced with a precarious situation where it found that most of the appropriate level officers of AGMUT Cadre were not having sufficient experience of policing for appointment as DP Commissioner," he submitted.

The SG added,

"Hardship has to be that of Govt. An officer cannot claim undue hardship on account of retirement.

In case of hardship faced by Govt in finding a suitable officer for a specific post with special requirements within a cadre, it can relax the rules and grant extension of service to an officer."

Appointment in consonance with statutory Rules

The SG claimed that a bare perusal of Rule 16 of AIS (DCRB) Rules shows there cannot be construed as an absolute bar in granting extension in service beyond superannuation. Competent authority is duly entitled to grant extension to members of All India Service, he said.

Mehta read Rule 3 of All India Services (Conditions of Service-Residuary Matters) Rules, 1960 to supplement his argument on relaxation of conditions.

He reiterated that in past, similar appointments were not challenged by the Petitioners.

SG Mehta also said allegation that the Government did not comply with Fundamental Rule 56 while appointing Asthana as the Delhi Police Chief takes a backseat inasmuch as this Rule is verbatim incorporated in Rule 16 of AIS (DCRB) Rules and there is a provision for exemption.

He highlighted that there is limited scope of judicial review at the behest of non-affected parties, when undisputedly there is a power to do something.

Submissions on behalf of Rakesh Asthana

Senior Advocate Mukul Rohatgi began his submission by highlighting that PIL is not maintainable in service matters. He then alleged that the present petition is a "proxy litigation" inasmuch as apart from the fact that petitioner Sadre Alam is an Advocate, there's nothing on record showing what's his concern.

Rohatgi then alleged that organisations namely Common Cause and CPIL who are projecting a personal vendetta under the cloak of filing public interest litigation against him. He stated that apart from filing petitions, these organisations are also taking to the social media to raise their claims.

"No person can be permitted to carry a campaign on social media and at the same time file litigations…Neither Petitioner nor Intervenor are entitled to be heard by this Court given their malafide conduct," he said.

He relied on the case of Of Uttaranchal v. Balwant Singh Chaufal where pointers were given for entertaining a PIL.

Referring to those pointers, Rohatgi submitted,

"There's no correctness in this petition. It's a copy paste. What's the public harm? He's an officer of 30 years' experience, has led the CBI. He has an unblemished career. Therefore, it's a motivate petition liable to be dismissed with costs."

On merits, Rohatgi argued that Delhi is not a full-fledged State. It has a commissionerate, governed by Delhi Police Act. Appointment is made in consultation with LG. Delhi Police is under Centre. So appointment of DGP in a state is different and judgment in Prakash Singh is not applicable to the instant case.

"Delhi has a peculiar situation apart from being the national capital. The competent authority did not find a more competent person is why an inter-cadre deputation was made.

So far as "undue hardship" argument for inter-deputation is concerned, it is not hardship of candidate that he is retiring. It is hardship of Govt. Hardship was that no other suitable appointee was found. So what else will it do?

No rule (Rule 16) can forever take into account all exigencies and that is why there is a power of exception, for relaxations," he said.