Supreme Court Posts Petitions Filed By CPIL Challenging Appointment Of Rakesh Asthana As Commissioner Of Delhi Police For Final Disposal
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The Supreme Court on Wednesday posted for final disposal on a Non-Miscellaneous Day petitions filed by the NGO Centre for Public Interest Litigation challenging the appointment of Rakesh Asthana as the Commissioner of Delhi Police.The bench of Justices D. Y. Chandrachud and AS Bopanna was considering two petitions filed by the CPIL - one a writ petition filed against the Central Government...
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The Supreme Court on Wednesday posted for final disposal on a Non-Miscellaneous Day petitions filed by the NGO Centre for Public Interest Litigation challenging the appointment of Rakesh Asthana as the Commissioner of Delhi Police.
The bench of Justices D. Y. Chandrachud and AS Bopanna was considering two petitions filed by the CPIL - one a writ petition filed against the Central Government order appointing Asthana as the Delhi Police Commissioner, and the other a special leave petition filed against the Delhi High Court's judgment which rejected the challenge against Asthana's appointment. The Supreme Court had on November 26, 2021 issued notice on the petitions filed by the NGO Centre for Public Interest Litigation challenging the appointment of Rakesh Asthana as the Commissioner of Delhi Police. As soon as the matter was taken, the bench told Advocate Prashant Bhushan, who appeared for the CPIL, that it was issuing notice.
Solicitor General of India Tushar Mehta appeared for the Union of India and Senior Advocate Mukul Rohatgi appeared for Rakesh Asthana. The Court directed that counter-affidavits be filed within 2 weeks.
On Wednesday, Mr. Bhushan told the bench that the petitioners do not seek to file any response to the Centre's counter-affidavit and prayed that he be allowed 30-40 minutes to argue the matter. However, on account of the urgency with regard to the matter concerning the EWS reservation in the NEET-AIQ, the bench adjourned the same.
CENTRE'S REPLY
The counter-affidavit of the Centre, filed by the Under Secretary, Ministry of Home Affairs, contends that the present petition is an abuse of process of law and manifestly an outcome of some personal vendetta against incumbent police commissioner entertained by the petitioner- "This becomes clear from the fact that though the petition is based on Prakash Singh-(1) judgment [(2006) 8 SCC 1] eight (8) IPS officers have been appointed by the Central Government as Police Commissioner Delhi following the very same procedure which has been followed while making the appointment in the present case. In the instant case, Shri Rakesh Asthana, IPS has been granted extension of service and has been appointed the Commissioner of Police, Delhi initially for a period of one year beyond the date of superannuation on 31.07.2021 or until further orders whichever is earlier in relaxation of 16(1) of the AIS(DCRB) Rules, 1958 as a special case in public interest. However, petitioner claims to be espousing a public cause, never considered challenging appointment of eight (8) erstwhile Police Commissioners though they were appointed in the same manner as is done in the case of Respondent No.2 (Asthana). Such a selective exhibition of "public interest" speaks volume about the motive behind filing present petition and Writ petition in the Supreme Court."
"It is submitted that the petitioner is busy body. The petitioner keeps on selectively filing petitions and such selection of selected public interest are for the reasons which are beyond comprehensions. Assuming that any intermeddler can bring issues to the notice of the Hon'ble Court, role of such busy body must come to an end and they cannot convert the petition into a bi-parte dispute," it is advanced.
The deponent however states that the detail rationale behind appointment of the Respondent No 2 to the post of CP Delhi Police, his inter-cadre deputation and the extension of service given to him forms part of the original file, and that the deponent undertakes to place the original file for perusal of the court during the course of hearing of the present matter- "A bare perusal of the reasons provided in the original file manifest that both inter-cadre deputation as well as extension of service of Respondent No.2 was granted by the Central Government in public interest. The prime consideration for the same was that GNCT being the capital of the country has been witnessing diverse and extremely challenging situations of public order/law and order situation/policing issues which not only had national security implications but also international/cross border implications. As such, 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 in a large State having diverse political as well as public order problem/experience of working and supervising Central Investigating Agency(s) as well as para-military forces. To achieve the above purpose a search was done in AGMUT cadre, which is the IPS cadre for GNCT. However, since AGMUT cadre being a cadre comprising of Union Territory and small north-eastern states, it was felt that requisite experience of working and supervising the central investigating agency/para-military force and police force of a large State having diverse political and law and order problem was lacking in the present pool of available officers and hence in public interest, a decision was made by the Central Government to have an officer who had experience in all the above fields to supervise Delhi Police force and to provide effective policing on the recent law and order situation which arose in the National Capital Territory of Delhi."
ERRONEOUS CONTENTION THAT THE IMPUGNED APPOINTMENT IS IN VIOLATION OF PRAKASH SIGH'S CASE
"I respectfully state and submit that the contention of the Petitioner that the appointment of Respondent No.2 is in violation of the judgment of the Hon'ble Supreme Court rendered in Prakash Singh‟s case (supra) is completely misconceived and devoid of any merits. It is submitted that the Petitioner has failed to appreciate, for the reasons best known to him, that the said judgment is only applicable for the appointment to the post of "DGP of a State" / chief of the police administration of the entire State. The said judgment has no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT cadre", avers the affidavit.
RATIONALE AS TO WHY THE DICTUM OF PRAKASH SINGH (1) CASE CANNOT BE MADE APPLICABLE TO UNION TERRITORIES WHICH HAVE A COMMON AGMUT CADRE
"I state and submit that as per Prakash Singh (1) case the Head of Police Force in the State i.e. the DGP rank officer is an officer who after selection attains Pay-level 17. In terms of the judgment a DGP is selected from the eligible DG level officers in Pay-level 16 and ADG level officers, available in the cadre with 30 years of service and 6 months service left for retirement. Generally, in the State Cadres, sufficient officers are available for preparing the panel for appointment to the DGP level post (pay level 16), in which after appointment the officer so chosen attains Pay-level17. However, the status of AGMUT Cadre is different from other State Cadre. In case of AGMUT Cadre, there are 9 segments (excluding J&K and Ladakh) i.e. Delhi, Chandigarh, Arunachal Pradesh, Mizoram, Goa, Lakshadweep, Andaman & Nicobar Islands, Puducherry and DNH&DD. In all these segments, Head of Police Force are in different pay level. The same are different for a simple reason that in AGMUT cadre there can never be a position that sufficient number of Pay-level 16 DG rank officers would be available in once segment, with 30 years of service and 6 months service left for retirement, for their empanelment by UPSC as per the direction of the Hon'ble Supreme Court in Prakash Singh 1 Case out of which one officer would be selected as head of the police force and granted Pay-level 17", the Centre submits.
THE PROCESS OF APPOINTMENT OF DELHI POLICE COMMISSIONER
"I respectfully state and submit that contrary to what has been alleged in the present petition the appointment of Commissioner of Police in GNCTD has all along been made as per the procedure prescribed under the Delhi Police Act, 1978, read with Transaction of Business of GNCTD Rules, 1993...it is respectfully reiterated that in accordance with the mandate of Delhi Police Act read with Transaction of Business of GNCTD Rules, 1993, eight (8) number of Commissioners have been appointed by Ministry of Home Affairs, prior to the appointment of Respondent No 2 following the procedure prescribed therein", reads the affidavit.
NO ILLEGALITY IN GRANTING INTER-CADRE DEPUTATION TO RESPONDENT NO 2
"I further respectfully state and submit that the other contention of the Petitioner that the appointment of Respondent No.2 to the post of Commissioner of Delhi is in violation of the extant policy regarding inter-cadre deputation is also misconceived and fallacious. It is respectfully submitted that the inter-cadre deputation of All India Services Officers is specifically provided under the rules. It is submitted that the inter-cadre deputation is notified by DoP&T OM No.13017/16/2003-AIS (I) dated 28.06.2018 which stipulates that all cases of inter-cadre deputation would be processed as per the guidelines stated therein and wherever relaxation of any of the provisions of the guidelines are required, the case is put up to a committee comprising of Secretary, DoP&T, EO & Addl. Secretary and Addl. Secretary (S&V) and Home Secretary as co-opted member in case of relaxation of any provision relating to inter-cadre deputation of IPS officers are concerned. It is submitted that in consonance with the aforesaid policy of inter-cadre deputation of AIS officers, the matter is first placed before the Committee above stated for recommendation of relaxation of the conditions laid down in the policy dated 08.11.2014. It is submitted in exercise of power conferred under clause (a) of the DoP&T OM No.13017/16/2003-AIS (I) dated 28.06.2018, the Central Government has been time and again granting inter-cadre deputation to officer who have attained pay level 14 and above by following the procedure provided under Clause (b) of the aforesaid OM and there has never been any dispute of the Central Government‟s power or competence to do the same...there is neither lack of competence in the central government to grant inter-cadre deputation to IPS officer above pay-level 14 nor there is no procedural irregularity in granting inter-cadre deputation to Respondent No.2 to head the Delhi Police force for the reason which has been elaborately dealt with and explained in the original file", the Centre has told the Court.
GRANT OF EXTENSION OF SERVICE
"I respectfully state and submit that the contention of the Petitioner that the extension of service granted to Respondent No.2 is in violation of Fundamental Rule 56 read with Rule 16 (1) of AIS (DCRB) Rules, 1958 is completely misconceived and untenable in law. It is submitted that a bare perusal of the averments made in the instant petition reveals that what has been sought to be portrayed by the Petitioner is that there is complete bar of any extension in service being granted to any of the member of All India Services, and therefore, in the present case the extension which has been granted is violative of the foresaid Rules and hence void...a bare perusal of the Government instructions/decisions in respect of Rule 16 reveal that Rule 16 cannot be read to mean that there is a complete bar in granting extension in service beyond the age of superannuation. The competent authority is duly entitled to grant extension to members of All India Services which include IAS and IPS officers....in case of hardship faced by the Central Government/Cadre Controlling Authority (CCA) 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 in exercise of powers conferred to it under Rule 3 of the Residuary Rules and Section 21 of the General Clauses Act...That in the instant case of extension of services of Shri Rakesh Asthana, beyond his superannuation has been done, keeping the complexity and sensitivity of situation of National Capital in view", contends the Centre.
BACKGROUND
Asthana, a 1984-batch Gujarat cadre IPS Officer, was appointed as Delhi Police Commissioner on July 27, just four days before he was scheduled to retire from service. The Union Home Ministry, which oversees the Delhi Police, granted Mr Asthana one year's extension in service "in public interest".
The plea moved through Advocate Prashant Bhushan avers that just 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.
The plea states that the appointment order is in clear and blatant breach of the directions passed by Apex Court in the Prakash Singh case (2006) 8 SCC 1 as:
- Asthana did not have a minimum residual tenure of six months;
- No UPSC panel was formed for the appointment of Delhi Police Commissioner; and
- The criteria of having a minimum tenure of two years had been ignored
The petitioner argued that the decision is in violation of a July 2018 judgment of the Supreme Court in the case Prakash Singh & Others v.Union of India which said 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.
The Delhi High Court, in its October 12 judgment dismissing the challenge against Asthana's appointment, held that the Prakash Singh guidelines are applicable only to states and have no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre.
The High Court also held that Delhi being the national capital, the Central Government must be given larger leeway in appointing an experienced and competent officer as the Police Commissioner.
"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 division bench comprising Chief Justice DN Patel and Justice Jyoti Singh observed.
The High Court delivered the judgment in a writ petition filed by one person named Sadre Alam. Earlier, CPIL had approached the Supreme Court with its petition under Article 32. However, a bench led by the Chief Justice of India asked CPIL to approach the High Court, having regard to the pendency of the challenge there, and requested the High Court to decide the issue expeditiously.
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