Decide issue of Rakesh Asthana’s appointment as Delhi Police Commissioner within 2 weeks, SC orders Delhi HC

The Supreme Court of India on Wednesday ordered the Delhi High Court to decide within two weeks the plea for quashing of the Central government's decision to appoint Rakesh Asthana as the Commissioner of Police, Delhi.

Chief Justice of India (CJI) NV Ramana also expressed reservations regarding hearing the public interest litigation (PIL) petition filed before the top court on the issue since he was earlier part of the committee which had rejected the Central government's proposal to appoint Asthana as the CBI Director.

"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.

During the hearing, the Bench's attention was drawn to the fact that a similar petition is pending before the Delhi High Court.

The Court, therefore, proceeded to direct the High Court to dispose of the matter within two weeks, Bar & Bench reported.

The Court also directed that the petition before the top court be listed after two weeks before another Bench.

"The High Court is requested to dispose the plea within 2 weeks. List this case here after two weeks. List this plea here before any other Bench after 2 weeks," the Supreme Court ordered.

During the hearing, advocate Prashant Bhushan appearing for petitioner NGO, Centre for Public Interest Litigation, said that the plea before the High Court is an ‘ambush petition’ and such petitions are filed in collusion with the government to disable genuine petitioners.

"To obviate what your apprehension we can give liberty to file a substantive plea in high court so that later you have a substantive right of appeal," said Justice DY Chandrachud who was on the Bench.

"Petitioner permitted to file substantive plea in High Court," the Court stated in its order.

The plea challenges an order passed by the Ministry of Home Affairs granting Rakesh 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 judgement by the Supreme Court in ‘Prakash Singh vs 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 was ignored, as directed in the judgement.

The petition clarified that even though the directions in Prakash Singh case 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.

The plea 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 the CBI Director. However, the proposal was reportedly rejected by the CJI NV Ramana citing the “six-month rule” laid down in Prakash Singh case.

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 while on the verge of his 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.

The plea also contended that to relax any requirements such as those under Rule 16, Rule 3 must be satisfied. Rule 3 confers the Central government the “Power to relax rules and regulations” in cases of “undue hardship” to a particular officer. However, no undue hardship was traced to Asthana, it was submitted.

In fact, Asthana had already reached Super Time Scale in his home cadre, therefore becoming ineligible to avail inter-cadre deputation, the petition stated.

National Herald had earlier carried a report on July 29, when Asthana had been appointed, pointing out that the Supreme Court could well strike down Asthana’s appointment on the grounds laid down in the CPIL’s petition before the court that was heard today.

Several senior former IPS officers had also expressed their surprise at the Centre’s sudden move appointing him as chief of Delhi Police in apparent violation of the SC’s directives in Prakash Singh case.