Five reasons why Delhi High Court dismissed challenge to appointment of Rakesh Asthana as Delhi Police Commissioner

In its 77-page judgment, the Court concluded that there was no violation of the Supreme Court's Prakash Singh judgment or any violation of service rules in the appointment of Rakesh Asthana as DCP.
Five reasons why Delhi High Court dismissed challenge to appointment of Rakesh Asthana as Delhi Police Commissioner
Rakesh Asthana, Delhi High Court

The Delhi High Court on Tuesday dismissed a public interest litigation (PIL) petition challenging the appointment of Rakesh Asthana as the Commissioner of the Delhi Police (DCP) [Sadre Alam v. Union of India].

A Bench of Chief Justice DN Patel and Justice Jyoti Singh pronounced the verdict on Tuesday morning.

In its 77-page judgment, the Court concluded, inter alia, that there was no violation of the Supreme Court's Prakash Singh judgment or any violation of service rules that merited the High Court's interference in the appointment of Asthana as DCP.

The Court had reserved orders in the matter on September 27 after hearing advocate BS Bagga for the petitioner (Sadre Alam), advocate Prashant Bhushan for the intervenor (CPIL), Solicitor General Tushar Mehta for the Central government and Senior Advocate Mukul Rohatgi for Rakesh Asthana.

Highlights of the Judgment

1. Prakash Singh judgment not applicable to Union Territories

Notably, the Court has ruled that the directions given by the Supreme Court in the case of Prakash Singh v. Union of India are not applicable to the appointment of heads of police in Union Territories.

The judgement and the directions in the Prakash Singh case have no application to the appointment of Commissioners or police heads of Union Territories falling under the AGMUT Cadre, the Court said.

As such, the Court declined to accede to one of the primary contentions pressed by the petitioner, Sadre Alam and the intervenor, Centre for Public Interest Litigation (CPIL). It may be recounted that the petitioner and intervenor had emphasised that Asthana only had four days remaining until retirement when he was appointed DCP.

The Central government, represented by Solicitor General Tushar Mehta had countered that the directions in the Prakash Singh case were only applicable to States and not Union Territories. Agreeing with the Central government, the Court has said:

"The directions of the Hon‟ble Supreme Court were only intended to apply with respect to the appointments of the DGPs in the respective States and thus there is no violation of the directions of the Hon'ble Supreme Court."

Therefore, the Supreme Court's directions mandating a minimum of six months' residuary period service period before superannuation and for selection from a pool of officers empanelled by the UPSC do not apply to the appointment of DCP, the High Court has held.

"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.

2. UPSC Guidelines issued following Prakash Singh case is not applicable to UTs

The Court noted that the guidelines of the Union Public Service Commission (UPSC) issued in line with the Prakash Singh judgment also only applied to States and not Union Territories. These guidelines were placed before the Supreme Court and had faced no objection, it was observed further.

"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 ... 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," the High Court said.

3. Delhi, being Indian capital, has peculiar requirements

The Court also found merit in the Central government's contention that Delhi, being the capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate.

As such, the Bench opined that the executive should have more freedom when it comes to the appointment of the DCP.

"Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders. Thus, it is imperative that “free movement of joints” is given to the Central Government for appointment of Commissioner of Police, Delhi, keeping in mind the complexities obtaining in the Capital," the High Court said.

On a related note, the Court also took note of the Centre's contention that there is a lesser pool of officers to choose from in the Arunachal Pradesh-Goa-Mizoram and Union Territory (AGMUT) cadre.

From this viewpoint as well, the Bench decided against interfering with the appointment of Asthana as DCP, which, the Court was told, considering his diverse experience.

"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 High Court said.

4. Eight previous DCPs have been appointed following same procedure

The appointment of eight previous Police Commissioners in Delhi were also done following the same procedure followed when Asthana was appointed as DCP, the Court further noted. This procedure has been followed since the Prakash Singh ruling in 2006, the Court was told.

This also led the Court to decide against interfering with Asthana's appointment as DCP.

"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 ... We accordingly see no reason to direct Respondent No. 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre and in particular, when we find that the directions in Prakash Singh’s Case (I) and (II) are inapplicable to the appointment in question", the Court said.

5. No violation of service rules

The petitioner and the intervenor had alleged the violation of various service rules in appointing Asthana as DCP by granting inter-cadre deputation and extension of service days before his retirement.

The Court has, however, concluded that the Central government had the power to relax some of the rules cited.

"Once this Court finds that the Central Government has the power, jurisdiction and authority to grant relaxation of any of the provisions of the Guidelines issued on 28.06.2018 for Inter-Cadre deputation of All India Services officers and that the power has been exercised for valid and just reasons, we see no reason to interfere in the decision of granting Inter-Cadre deputation to Respondent No. 2 (Asthana)," the Court said.

It added that the petitioner and the intervenor have been unable to demonstrate that there was any blot in Asthana's service career and that the executive in Delhi has reasonable discretion to select a suitable officer for the post based on his career graph.

The Court added that it cannot substitute its own wisdom and decision for that of the Central government in this matter.

"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 Court said.

Further, it was noted that this was not the first time that the rules were relaxed.

"Respondent No. 1 (Central government) has enumerated the names of 9 IPS officers, in whose cases, the service tenure was extended, by invoking the powers under Rule 3 of Rules, 1960", the Court found.

Having concluded that there was no violation of service rules and that this was not a case meriting the issuance of a writ of quo warranto, the Court also took to opportunity to reiterate that public interest litigation cannot generally be entertained in a service matter.

Note of caution to petitioner against "cut-copy-paste"

Before parting with the case, the Court also cautioned against plagiarism.

It may be recounted that there was some controversy in this case as to whether the petitioner, Sadre Alam, had copied his petition from a plea moved by CPIL before the Supreme Court. Both petitions were noted to be highly similar, with allegations made that even typos and grammatical errors found in CPIL's plea made it to the petition filed by Alam.

Alam's counsel, Advocate BS Bagga, strenuously denied the allegation whereas Solicitor General Mehta agreed with Advocate Prashant Bhushan, who appeared for CPIL, that Alam's petition was a "copy-pasted."

The High Court did not delve too deep into the allegations. However, it warned that plagiarism in such matters is unhealthy and deserves to be deprecated.

"We may add a note of caution to the Petitioner ... 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," the Court said.

[Read Judgment]

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