BREAKING : Delhi High Court Dismisses Petition Challenging Rakesh Asthana's Appointment As Delhi Police Commissioner

A division bench comprising Chief Justice DN Patel and Justice Jyoti Singh dismissed the petition filed by one Sadre Alam. The NGO 'Centre for Public Interest Litigation' had intervened in the petition through Advocate Prashant Bhushan challenging Asthana's appointment.

It held that directions issued by the Supreme Court in the decisions rendered in Prakash Singh's Case (I) and Prakash Singh's Case (II) are applicable only for appointment to the post of "DGP of a State", and not the Union Territories.

"The judgement and the directions therein, have no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre," the Bench ruled.

The Court also held that the Executive, which is responsible for the law and order situation in the National Capital, must have a reasonable discretion to select an officer it finds more suitable, based upon the career graph of such an officer, unless there is anything adverse in the service career of such an officer.

It said,

"It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors."

The Bench was also of the opinion that public interest litigation cannot be entertained in a service matter.

The CPIL had earlier moved the Supreme Court. But the Top Court asked the NGO to move the Delhi High Court, where the petition filed by Sadre Alam was already pending. The Supreme Court had also requested the Delhi High Court on August 25 to decide the issue within a period of two weeks.

The High Court bench, which had reserved the judgment on September 27, pronounced the verdict today morning stating that the petition has been dismissed.

Prakash Singh case not applicable to UTs

"The peculiar set up of Union Territories and the lack of pool of sufficient officers in the appropriate Pay-Level, with requisite experience, in the AGMUT cadre, as highlighted by learned Solicitor General and not disputed by the Petitioner and the Intervener, lead to an inevitable conclusion that application of the UPSC Guidelines, flowing from the directions of the Hon‟ble Supreme Court, to Union Territories will create an anomalous situation, which would be completely unworkable."

"This Court is unable to discern any observation of the Hon'ble Supreme Court which even remotely indicates or suggests that the directions were issued in the context of Police Heads of Union Territories, falling under the AGMUT Cadre."

"On account of the unavailability of sufficient number of officers in the pool in respect of various segments of AGMUT Cadre, we cannot but agree with Respondent No. 1 that the State Cadres have to be treated differently from the AGMUT Cadre."

Principle of contemporanea expositio

In this backdrop, the High Court held,

"It is a settled law that where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of a Statute or Executive Instructions. Therefore, applying the principle of contemporanea expositio, if a procedure has been followed by the Central Government since 2006, with the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage."

It added,

"This is more so, on account of the fact that the Petitioner/Intervener have been unable to demonstrate that a different procedure, from the one followed in appointing Respondent No. 2, was followed for appointment of the erstwhile 8 Commissioners of Police, Delhi."

It concluded,

"Appointment of Respondent No. 2 as Commissioner of Police, Delhi has been made by following the statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993. No appointment to the said post, has been challenged in the past by any stakeholder on the ground that the said Act or the Rules are inapplicable to the appointment or that the applicability of the procedure prescribed therein is in violation of the directions of the Hon‟ble Supreme Court in the case of Prakash Singh's Case (I) and (II)."

The Court also rejected the contention that under Fundamental Rules, no Government Servant shall be granted extension in service beyond the age of retirement of 60 years. It said,

"Plain reading of the aforesaid Rule 3 shows that the Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case."

It added,

"it is not open for this Court, sitting in a judicial review, to substitute its own decision and wisdom for that of the Central Government as it is really the domain and prerogative of the Government to take a decision for grant of relaxation or otherwise, on the basis of its subjective satisfaction premised on objective considerations."

The Bench reiterated that public interest litigation cannot be entertained in a service matter.

Delhi Police Commissioner, Rakesh Asthana is a 1984-batch Gujarat cadre IPS officer who took charge as Delhi Police Commissioner in July 2021.

Four days before this retirement, the Ministry of Home Affairs issued the order of his appointment as Delhi Police Commissioner thereby extending his service initially for a period of one year beyond the date of his superannuation on 31.07.2021.

Asthana's appointment was challenged on multiple counts, including the fact that the appointment was made merely four days before his retirement, in sheer violation of the Prakash Singh & Others v. Union of India case where it was held by the Supreme Court that the Union Public Service Commission (UPSC) should, as far as possible, consider only those officers for such appointments who have two years of service left.

It was also argued that:

• 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.

It was further stated that non-appointment of the Delhi Police Commissioner from the AGMUT cadre will have a deleterious effect on the said cadre, sending a signal that the personnel therein are incompetent.

The Centre on the other hand argued that appointment of Rakesh Asthana as Delhi Police Commissioner was done in public interest owing to the reason the Delhi, being the national capital, has been witnessing law and order and policing issues having national security and cross border implications.

It had also stated that a compelling need was felt by the Central Government to appoint a person as a head of the police force of Delhi, who had diverse and vast experience of heading a large police force, having political as well as public order experience of working and supervising Central Investigating Agency(s) as well as para-military forces.

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

It 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.

So far as compliance with the Supreme Court judgment in Prakash Singh case is concerned, the Centre had claimed that the final operative directions in the case were applicable to State for appointment of DGPs, and not to the Union Territories.

Read full arguments here.

The Centre for Public Interest Litigation had alleged that Alam's plea is a "copy-paste" of the petition filed by CPIL before the Supreme Court.

During the hearing, the Court had deprecated this practice, saying,

"The Judges must be enlightened by the lawyer but you have simply copied without understanding. You should bring your independent submissions. If you are copying, you should copy 5%. You can't copy 90%. This time we have tolerated..."

Solicitor General Tushar Mehta had also criticised such a move and had urged the Court to investigate the Petitioner. "The debutant should be stopped at the outset, so that he does not repeat such actions in future. It's in his interest as well as the national interest. Such abuse should be stopped," the SG had said.

Adding a note of caution for the Petitioner in the judgment, the Bench said,

"We do not wish to precipitate the issue any further but are constrained to observe that such a practice is certainly unhealthy and deserves to be deprecated and the Petitioner shall be well advised to refrain from indulging in such an exercise, in future."

Advocate BS Bagga represented the Petitioner, Advocate Prashant Bhushan appeared for CPIL, SG Tushar Mehta argued for Centre and Senior Advocate Mukul Rohatgi defended Rakesh Asthana.

Case Title: Sadre Alam v. Union of India