SC Agrees to Hear Plea Against HC Upholding Asthana’s Appointment as Delhi Police Chief

The Supreme Court on Friday issued notice to the Union Government and Delhi Police Commissioner Rakesh Asthana on an appeal filed by the NGO, Centre for Public Interest Litigation (CPIL) challenging the Delhi High Court’s order upholding Asthana’s appointment as Delhi police chief.

A two-judge bench of Justices D.Y. Chandrachud and A.S. Bopanna directed both the Centre and Asthana to file replies to the appeal within two weeks. Solicitor General (SG) of India Tushar Mehta and senior advocate Mukul Rohtagi represented the Centre and Asthana respectively, while advocate Prashant Bhushan represented the petitioner.

The Delhi High Court had last month dismissed petitions challenging the appointment of Asthana as Commissioner of Police, Delhi. A division bench of the High Court, led by Chief Justice D.N. Patel, was of the view that the Supreme Court’s Prakash Singh judgment of 2006 did not apply to the appointment of Commissioner of Police, Delhi, and thus, there was no need to send the case to the Union Public Service Commission (UPSC) for empanelment.  The High Court also disagreed with the petitioner’s contention that Asthana ought to have fulfilled the requirement for a residuary service of six months, before his superannuation, in order to be eligible for  appointment as Delhi Police Commissioner.

On July 27, the Union Ministry of Home Affairs issued an order for the inter-cadre deputation of Asthana from Gujarat cadre to AGMUT (Arunachal Pradesh, Goa, Mizoram, Union Territory) cadre, and extending his service initially for a period of one year beyond the date of his superannuation on 31.07.2021 or until further order, whichever is earlier, in relaxation of Rule 16(1) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 as a special case in the public interest.   Following this, the MHA appointed him as the Delhi Police Commissioner.

The NGO, in its appeal, has contended that the union government has brazenly flouted all statutory rules, its own policies, as well as the Supreme Court’s judgments by arbitrarily extending the service of Asthana when he was on the verge of his retirement. It says Asthana did not come under any proviso to Rule 16 of the 1958 Rules, and thus, he was not entitled to any kind of relaxation in his service conditions.

As per Rule 16, a member of the Service shall retire from the service with effect from the afternoon of the last day of the month in which he attains the age of sixty years. However, the Rule makes an exception for giving a six months’ extension to a member of the Service dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period, a member of the Service holding the post of Chief Secretary to a state government, or a member of the Service holding the post of Chief Secretary to the Government of Jammu and Kashmir.

When Asthana was given the extension in his services just four days before his retirement, he was serving as Director General, Narcotics Control Bureau – a post that is not mentioned in Rule 16 for which any exemption could have been given.

It points out that even though the order issued on July 27 this year by the Centre extended the service of Asthana purportedly “as a special case in the public interest”, no public interest whatsoever is in fact served by it; rather, the said order has clearly been issued in order to unduly promote the interests of Asthana and at the same time making the post of Delhi Police Commissioner completely subservient to the whims and fancies of the union government, thereby, defeating public interest.

The petitioner also refers to media reports which state that a High-Powered Committee (consisting of the Chief Justice India) had to apply the ‘six months rule’ even in case of a Central Bureau of Investigation (CBI) Director; there is absolutely no logical or legal reason for not applying this said rule in the case of the Delhi Police Commissioner. Apparently, CJI N.V. Ramana had insisted on the six months’ rule, which excluded Asthana from the race of CBI director post.

The appeal also takes exception to the Delhi High Court’s narrow reading of the Prakash Singh judgment. It says that the high court reached its decision without referring at all to the clear object/import of the directions passed by the Supreme Court in Prakash Singh, which is to insulate the police machinery from political/executive interference and to strengthen and preserve the rule of law.

“High Court erred in narrowly reading this Hon’ble Court judgment in the ‘Prakash Singh’ case by making unreasonable distinction between DGP of a State and Delhi Police Commissioner, even though both the posts are of Heads of Police Force. It is respectfully submitted that ‘Prakash Singh’ judgment/orders cannot be read to mean that only DGPs and state police are required to be insulated from political / executive interference, and no such insulation is required for Delhi Police Commissioner and Delhi Police. If such a narrow interpretation is given to the ‘Prakash Singh’ judgment/orders, then it will tantamount to putting a stamp of approval to the political / executive interference in the functioning of Delhi Police, which would be destructive to the Rule of Law and hence violative of Articles 14 and 21 of the Constitution of India”, the appeal states.

Besides, it is contended by the petitioner that even assuming that the procedure followed for appointment of the Delhi Police Commissioner was correct and that there was no officer in the AGMUT Cadre with six months of residual service, there is absolutely no reason whatsoever given as to how the Union of India was unable to find any officer in the non-AGMUT Cadre who had more than six months of residual service for appointment as Delhi Police Commissioner.