SC Directions In Prakash Singh Case For DGP Appointment Not Applicable To Union Territories: Delhi High Court

"The judgement and the directions therein, have no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre," the Division Bench of Chief Justice DN Patel and Justice Jyoti Singh ruled.

The development comes during dismissal of a petition challenging the appointment of IPS Officer Rakesh Asthana as the Commissioner of Delhi Police.

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

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 Petitioner/ Intervenor in the matter had claimed that Asthana's appointment was made in sheer violation of the Prakash Singh & Others v. Union of India case (Both I and II).

What was held in Prakash Singh case?

Therein, the Supreme Court had directed that:

• DGP of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by UPSC on the basis of their length of service, very good record and range of experience for heading the Police Force.
• The DGP should have a minimum tenure of at least two years, irrespective of his date of superannuation.
• The candidates recommended by UPSC for the said post should have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement.

Petitioner's Arguments

It was the Petitioner/ Intervenor's case that the post of Delhi Police Commissioner is akin to the post of DGP of the State and therefore directions in Prakash Singh's Case are required to be followed by the Central Government while making an appointment to the said post.

It was contended that in contravention of the said directions, Asthana was appointed without being empanelled by UPSC, besides the fact that he did not have a residual tenure of six months of service, at the time of his appointment, since he was retiring within four days of the appointment.

Additionally, it was argued that Asthana has been appointed for a period of only one year, beyond his date of superannuation, though the Supreme Court clearly directed that a minimum two years tenure must be available to the appointee.

It was also their case that Asthana's appointment sends a signal that the officers in AGMUT cadre are not competent to lead the Police Force and will thus have a demoralizing effect on them.

Centre's Stand

The Centre on the other hand claimed that the final operative directions issued by the Supreme Court in the case of Prakash Singh for empanelling by UPSC, selection of minimum tenure, etc. are applicable to State for appointment of DGPs, and have no application for appointment to the post of Commissioner/Police Head of a Union Territory, falling under the AGMUT Cadre.

It was contended that pursuant to the directions issued in Prakash Singh's Case, UPSC framed Guidelines for appointment of DGPs of States in 2006, but no such Guidelines were framed for appointment of Police Commissioner/Head of Police Force in Union Territories, appointed from the AGMUT Cadre.

The Centre also pointed out that in terms of the judgment in Prakash Singh's Case, Head of Police Force in the State i.e. DGP Rank Officer attains Pay-Level 17 after selection, from the eligible DGP level Officers in Pay-Level 16.

However, in AGMUT Cadre, there never exists a situation where sufficient number of Pay-Level 16 DG Rank Officers are available in one segment, with thirty years of service and six months of residual service, for empanelment by UPSC.

It was further highlighted that since 2006, eight appointments have been made following similar procedure. However, none of them were challenged by the Petitioner and it is only Asthana's appointment that is bothering them.

Findings

The Court gave the following reasons for concluding that directions issued by the Supreme Court in the Prakash Singh's Case are indeed applicable only for appointment to the post of "DGP of a State", and not the Union Territories:

1. Application of Supreme Court directions to Union Territories will create an "anomalous situation" for the reason that UTs lack of pool of sufficient officers in the appropriate Pay-Level, with requisite experience, in the AGMUT cadre.

The High Court held that if directions issued in Prakash Singh's Case are to apply in the case of Union Territories/AGMUT Cadre, then from one single segment, three Pay-Level 16 IPS Officers, would be required for empanelment by UPSC and multiplying 3 with the number of total segments, a vast pool of eligible officers, would be needed to constitute the zone of consideration.

"This would be a completely unworkable situation, inasmuch as a vast pool of Pay-Level 16 IPS Officers for each segment is never available in the AGMUT Cadre," the Court said.

The Court noted that AGMUT Cadre does not have 3 IPS Officers in the DGP rank i.e. Pay-Level 16.

It further noted that though there are 10 sanctioned posts of ADGP (Pay-Level 15) and while officers in Pay-Level 15 are eligible for empanelment, however, in the presence of a DGP level officer in the segment, an officer of ADGP level cannot head the Police Force in that segment because superseding a senior officer in a higher Pay-Level shall have a deleterious effect on the officers.

Hence, it was held,

"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, for the purpose of empanelment of the respective Heads of the Police Force."

2. Perusal of paragraph 31 of the judgment, which entails the directions, indicates that direction No.2 under the heading "Selection and Minimum Tenure of DGP" are clearly meant to apply for selection to the post of DGP of a State.

The said paragraph opens as follows: "The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers…"

Thus, the High Court held that direction No.2 under the heading "Selection and Minimum Tenure of DGP" are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police.

"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," the High Court said.

3. While concluding the directions in paragraph 31, the Supreme Court said that "the aforesaid directions shall be complied with by the Central Government, State Governments or Union Territories, as the case may be…"

The High Court opined that use of the words "as the case may be" indicates that directions were not meant to automatically apply to the Union Territories.

"It is true that in the aforesaid paragraph of the judgment, there is reference to the Union Territories, however, the contention cannot be accepted as the Petitioner/Intervener are misreading and misconstruing the observations of the Hon'ble Supreme Court in the paragraphs relied upon by them. The contention overlooks the words "as the case may be", used carefully by the Hon'ble Supreme Court, while directing compliance of its directions. The words are certainly not without a meaning or relevance.

In fact, interpretation of these words has been the subject matter of several judgements and have been interpreted to mean and connote "whichever the case may be" or "as the situation may be". Broadly understood, the expression means, one out of the various alternatives would apply to one out of the various situations and not otherwise," the High Court held.

4. Principle of contemporanea expositio

Following the Prakash Singh case, the UPSC framed Guidelines for appointment of DGPs of States. The same do not concern with appointment of Police Commissioner/Head of the Police Force in the Union Territories, having a common AGMUT Cadre.

The said Guidelines were placed before the Supreme Court and till date, there has been no objection/challenge to them. In fact, as many as 8 erstwhile Police Commissioners in Delhi have been appointed following the said Guidelines and none of them have been challenged.

In this backdrop, the High Court applied the "principle of contemporanea exposition" which translates to where contemporaneous and practical interpretation has stood unchallenged for a considerable length of time, it is regarded as of great importance in arriving at the proper construction of a statute.

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."

5. Inter cadre deputation & Super time scale

The Petitioner/ Intervenor had contended that Asthana had reached the Super Time Scale in 2002 whereas Inter-Cadre deputation is permissible only before reaching the Super Time Scale in the Home Cadre, in terms of DoPT office memorandum dated November 8, 2004.

The Centre on the other hand argued that by virtue of a recent office memorandum issued by the DoPT on June 28, 2018, provisions of the 2004 memorandum can be relaxed, as and when required.

The High Court observed that there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of DoPT O.M. dated 08.11.2004.

In fact, it noted that in the past four officers above Pay-Level 14, have been granted Inter-Cadre deputation, exercising the power of relaxation.

"The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent No. 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action," it held.

Also Read: Delhi Has Unique Law & Order Requirements; Experienced Officer Required As Police Commissioner : Delhi HC On Rakesh Asthana's Appointment

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