The petition challenging the Central government's decision to appoint Rakesh Asthana as the Commissioner of Police, Delhi will be heard by a different Bench of the Supreme Court (Centre for Public Interest Litigation v. Union of India).
When the plea was taken up on Wednesday, Chief Justice of India NV Ramana had expressed his reservations on hearing case since he was earlier part of the High-Powered Committee which had rejected the Central government's proposal to appoint Asthana as Director of the Central Bureau of Investigation (CBI).
"There are two issues. One is my participation in this matter. As you have said I expressed my views on this person in a CBI selection matter," CJI said.
The order published on the Supreme Court website confirmed that the matter will be heard by an "appropriate" Bench.
"The Registry is directed to list this matter after two weeks before an appropriate Bench," the order states.
The plea filed by NGO Centre for Public Interest Litigation (CPIL) challenged an order passed by the Union Ministry of Home Affairs granting Asthana deputation, extension of service and appointing him as Delhi’s Commissioner of Police just four days before he was slated to retire.
The petition stated that the order of the Central government is completely illegal on multiple grounds.
It was contended that the order under challenge is blatantly violative of the judgment of the Supreme Court in Prakash Singh v. Union of India since Asthana did not have the required minimum residual tenure of six months, no UPSC panel was formed for his appointment, and the criteria of a minimum tenure of two years as directed in the judgement, was ignored.
The petition clarified that even though the directions in Prakash Singh were regarding the post of DGP of a State, they are applicable to the current issue since the post of Commissioner of Police, Delhi is akin to the post of a DGP.
CPIL also highlighted that in a High-Powered Committee meeting held in May 2021 comprising the Prime Minister, the leader of opposition and the Chief Justice of India, the Central government had attempted to appoint Asthana as CBI Director. However, the proposal was reportedly rejected by the CJI Ramana citing the “six-month rule” laid down in Prakash Singh.
As per the Fundamental Rule 56(d) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 no extension can be granted in service beyond the age of 60 years, the petition said.
Though the order under challenge clarified that the extension has been granted by relaxing Rule 16 that allows for extension in a special case for “public interest”, the petition reiterated that no such exception can be carved out for Asthana since he was appointed to the post when he was on the verge of retirement.
“The exception is to provide them with continuity in service for a certain period in order to enable them to complete their exigent tasks and to ensure that public interest doesn’t suffer because of their retirement... in no manner whatsoever envisage a situation or provide any legal basis for extending service of an officer who is serving on some other post and who is on the verge of his retirement in order to appoint him to a new post, and that too to a different cadre and department,” the plea said.
Since a similar challenge has been filed before the Delhi High Court, the Supreme Court on Wednesday chose to adjourn the case while directing the High Court to decide the plea before it within two weeks.
"We are adjourning this Writ Petition for two weeks. In the meanwhile, we request the High Court of Delhi to consider hearing the Writ Petition (Civil) No.8654 of 2021, which 2 is pending adjudication before it, as early as possible and preferably within a period of two weeks from today to enable us to have the benefit of the Judgment of the said Court," the order said.
The petitioner-NGO was also given liberty to file intervention application in the matter pending before the High Court.