New Delhi : The Supreme Court Wednesday asked Delhi High Court to decide “preferably within a period of two weeks” the plea pending before it challenging the appointment of senior IPS officer Rakesh Asthana as Delhi Police Commissioner.
The 1984-batch IPS officer was shifted to the Union cadre from Gujarat cadre and appointed Commissioner on July 27 — four days before his superannuation on July 31 — for a tenure of one year.
A bench comprising Chief Justice N V Ramana and Justices D Y Chandrachud and Surya Kant permitted NGO, ”Centre for Public Interest Litigation” (CPIL), to move the Delhi High Court to intervene in the pending plea against Asthana”s appointment.
The bench said in its order, “We request the High Court of Delhi to consider hearing the Writ Petition.., which 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.
“If the petitioner wants to file any intervention application in the matter pending before the High Court and/or to assist the said Court, it would be at liberty to do so”.
The bench kept the PIL of the NGO pending before itself by adjourning the hearing for two weeks and said, “The Registry is directed to list this matter after two weeks before an appropriate Bench.”
A Delhi High Court bench headed by Chief Justice D N Patel is seized of a PIL filed by an advocate challenging Asthana’s appointment as Delhi Police Commissioner and extension of his service by one year and had listed it for hearing on September 24 after it was told by lawyer Prashant Bhushan that the plea of CPIL was listed for hearing in the apex court.
Solicitor General Tushar Mehta, appearing for the Centre, opposed the PIL saying the matter pertained to the appointment of police chief of a state and the high court concerned should deal with it.
He said the high court may be granted some more time instead of two weeks as so far no notice has been issued to the Centre which will have to file its response.
The petition, moved by advocate Prashant Bhushan, urged the court to set aside the Centre”s order to appoint Asthana after extending his service period.
At the outset, the CJI expressed his inability to hear the PIL saying, “I had expressed my views during the selection of CBI Director”.
The CJI in an earlier meeting of the high-powered selection panel, which also comprised the Prime Minister and the leader of opposition, had put forth the legal position which reportedly led to non-consideration of Asthana for being appointed as the CBI Director.
“There are two issues. One is about my participation… I had expressed views about the selection of this gentleman in the CBI Director selection. Second thing…as somebody has filed a petition in the High Court, rightly or wrongly. We understand that time is of the essence of the matter.
“So, we will fix a time limit of two weeks for the high court to decide the case and we will have the benefit of the high court judgment also,” CJI Ramana said.
Bhushan alleged foul play saying sometimes “ambush petitions” by simply resorting to “cut-paste” are filed in collusion with the government.
The bench gave Bhushan the liberty to intervene in the pending petition or file a fresh one before the high court.
Mehta said a similar plea was pending in the high court and the NGO be asked to move there and sought to know which fundamental right of Bhushan has been violated leading him to file the petition in the apex court.
Bhushan retorted that on his petition the appointment of Central Vigilance Commissioner was annulled in past, and Asthana”s appointment has been done by “egregious violations of rules” resulting into violation of fundamental rights of citizens.
The government has shown “brazen violation of rule of law” and gave extension of service by appointing Asthana few days before his retirement, he said.
The conditions have been laid down by the apex court in the Prakash Singh’s case that recommendation has to come through the UPSC and the officer should have a minimum six months of service left at the time appointment, Bhushan said.
“So far as ambush petitions are concerned, less said is better. We have professional PIL litigants, who file surrogate pleas at behest of people who lost out in race,” Mehta said towards the end of hearing.
The NGO urged the apex court to direct the central government to produce its July 27 order approving the inter-cadre deputation of Asthana from Gujarat cadre to AGMUT cadre.
It termed the extension of his tenure as well as appointment as “illegal” as he did not have a residual tenure of mandatory six months of service at the time of his appointment as Commissioner of Police since he was to retire within 4 days.
It also claimed that the order violated the “Fundamental Rule 56(d)” which stipulates that that ‘no government servant shall be granted extension in service beyond the age of retirement of sixty years.’
“The central government did not have the power under ‘Rule 3 of All India Services (Conditions of Service- Residuary Matters) Rules’, to relax Rule 16(1) of the All India Services (Death-Cum-Retirement Benefits) Rules, in order to give extension of service to Rakesh Asthana,” the PIL claimed.
CPIL further claimed that the Centre’s order violated the policy regarding Inter-Cadre deputation of All India Service Officers.
“The impugned orders are in clear and blatant breach of the directions passed by this court in the Prakash Singh case as Asthana did not have a minimum residual tenure of six months, no UPSC panel was formed for appointment of Delhi Police Commissioner, and the criteria of having a minimum tenure of two years has been ignored,” it said.
“The appointment of Asthana to the post of Commissioner of Police, Delhi must be set aside on the same principle,” it said.
On July 3, 2018, the top court had issued a slew of directions on police reforms in the country and ordered all states and Union Territories not to appoint any police officer as acting Director General of Police (DGP).
It had also directed all states to send the names of senior police officers to the Union Public Service Commission (UPSC) for being considered as probable candidates to be appointed as DGPs or Police Commissioners as the case may be.
The UPSC, in turn, will prepare a list of three most suitable officers and the states will be free to appoint one of them as police chief, it had said.