Whether 'Prakash Singh' Judgment On DGPs Applies To Delhi Police Commissioner Appointment? Supreme Court Leaves Question Open

The Supreme Court recently disposed of a challenge raised to the appointment of ex-Delhi Police Commissioner Rakesh Asthana, while leaving open the legal question as to whether the 2006 judgment in Prakash Singh v. Union of India shall apply to the appointment of Delhi Police Commissioners.

A bench of Justices Surya Kant and N Kotiswar Singh passed the order, stating,

"The only legal issue that survives for consideration is whether the principles enumerated by this Court in Prakash Singh (I), Prakash Singh (II) and Prakash Singh (III) shall be applicable in the matter of appointment of Commissioner of Police Delhi also. While the case of the petitioner seems to be that those principles will apply mutatis mutandis in the case of Commissioner of Police, Delhi...the case of Union of India is that the cited decision of Prakash Singh will not apply in the matter of deployment/posting/appointment of the officers belonging to AGMUT cadre.

Keeping in view the subsequent events mentioned above (retirement of Asthana during pendency of proceedings), the special leave petition is disposed of as having become infructuous. However, the question of law is kept open to be gone into in an appropriate case."

To recapitulate, 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 order for 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.

Challenging his appointment, several litigants approached the Delhi High Court. It was their case that the post of Delhi Police Commissioner was akin to the post of DGP of the State and therefore directions in Prakash Singh were required to be followed by the Central Government while making an appointment to the said post.

Briefly put, in Prakash Singh, the Supreme Court directed thus:

(i) 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.

(ii) The DGP should have a minimum tenure of at least two years, irrespective of his date of superannuation.

(iii) 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.

The petitioners contended before the High Court that in contravention of Prakash Singh, Asthana was appointed without being empaneled 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.

In October, 2021, the Delhi High Court dismissed a petition challenging Asthana's appointment as Police Commissioner, being of the view that Prakash Singh was applicable only for appointment to the post of "DGP of a State" and not Union Territories. The Court observed that application of Supreme Court directions to Union Territories would create an "anomalous situation" for the reason that Union Territories lack pool of sufficient officers in the appropriate Pay-Level, with requisite experience, in the AGMUT cadre.

The High Court also noted that Asthana was an officer of with experience of approximately 37 years in different posts, found suitable by the Centre to be appointed as Delhi Police Commissioner on Inter-Cadre deputation from Gujarat Cadre to AGMUT Cadre by extending his service initially for a period of one year, beyond the date of his superannuation. It concurred with the Centre's stand that Asthana's appointment as Commissioner was done with a strategic view to address the "extremely challenging" law and order situation therein, which often has international implications by virtue of it being the national capital.

Challenging the High Court judgment, petitioner-NGO (which was an intervenor before the High Court) approached the Supreme Court. Taking into account the factum of Asthana's retirement in 2022, the Supreme Court deemed the issue infructuous. However, it left the legal question, on the applicability of Prakash Singh to the appointment of Delhi Police Commissioners, open.

Notably, Advocate Prashant Bhushan (appearing for petitioner) contended that para 45 of the High Court judgment, on the applicability of Prakash Singh to appointment of Police Commissioners, could affect all future appointments. The counsel claimed that any future appointments made likewise in violation of the mandate of Prakash Singh would amount to contempt of Court.

Responding to him, Justice Kant said, "We will provide you remedy...we hope that it does not happen in future...". The judge also added that a declaration on the applicability of Prakash Singh may be counter-intuitive, as "it may unnecessarily create problem for very good outstanding officers sometimes".

Speaking generally, Justice Kant further told Bhushan that sometimes, a hard-and-fast criteria can create a situation where it would be extremely detrimental to public interest. "Sometimes, in a given situation, you are required to deviate from the normal rules and take decision...a situation may arise where even you may say that this appointment does not strictly follow the rules but it is in public interest", the judge said.

Appearance: Advocate Prashant Bhushan (for petitioner); Solicitor General Tushar Mehta (for Union)

Case Title: CENTRE FOR PUBLIC INTEREST LITIGATION Versus UNION OF INDIA AND ORS., SLP(C) No. 019466/2021 

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