Rakesh Asthana case: High-octane exchange between lawyers; Delhi High Court reserves orders

‘Four days before retirement, you first grant him inter-cadre transfer, extend his service and appoint him all in one day in violation of all rules, Prakash Singh judgment,’ Prashant Bhushan argued

Rakesh Asthana
Rakesh Asthana
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NH Web Desk

The Delhi High Court on Monday reserved its order in the petition challenging the appointment of Rakesh Asthana as Commissioner of Delhi Police.

The Bench of Chief Justice DN Patel and Justice Jyoti Singh reserved its verdict after hearing the parties today.

Appearing for the petitioner, Advocate BS Bagga argued that Asthana's appointment by the Centre was in contravention of the Supreme Court's judgment in Prakash Singh v. Union of India. He said, "The judgment is saying "minimum residual tenure of six months" (after superannuation) should be there. Here, four days before the retirement, the appointment is made. This is bad in law."

Advocate Prashant Bhushan, appearing for intervenor NGO CPIL in the matter, informed the Court that the Centre had mentioned in its affidavit that even if petition is dismissed with costs, the benefit should not go to the intervenor.

"They first seek dismissal of the petition, but then they say the benefit of dismissal should not go to CPIL which has filed in Supreme Court. It is quite astounding," he said, as per a report carried by Bar & Bench.

He went on to point that the Union Public Service Commission (UPSC), which was required to recommend names to the Centre, did not have any role in Asthana's appointment.

Countering the Centre's argument that the Prakash Singh judgment does not apply to union territories like Delhi, Bhushan said, "They clearly contemplate that the directions are for all state police chiefs. He may be called a Police Commissioner rather than "DGP" in Delhi, but he is a police chief. Clearly, Prakash Singh contemplated, that's why they said Union Territory also...Merely because the final operative directions say that they apply to DGP (it does not mean it does not apply to CP, Delhi)."

He also contended that Asthana has been appointed for one year, when the judgment says it has to be for two years. As per the judgment, for being appointed as police chief, there has to be a residual tenure of six months, which was not followed in this case, Bhushan added.

"Four days before retirement, you first grant him inter-cadre transfer, extend his service and appoint him all in one day in violation of all rules, Prakash Singh judgment," Bhushan concluded, reiterating that a similar petition is pending before the Supreme Court.

Appearing for the Centre, Solicitor General Tushar Mehta argued that the ‘plagiarised petition’ is an abuse of process of law and a manifest outcome of personal vendetta. He added that if CPIL's petition filed in the Supreme Court was shared with the media, "it would not lie in mouth of intervenor to object it was copied."

"Intervenor and petitioner are mere busybodies. Intervenor selectively files petitions for reasons that are not comprehensible. The role of such busybodies must come to an end," the SG contended.

He added, "PIL is an industry. It is a career by itself, which was not envisaged by the Constitution. Time and again, Supreme Court has taken view that public interest litigation is not maintainable in service matters...Some citizens of this country have a desire to run the government, they fulfil their unfulfilled desires by such PILs..."

He contended that the Prakash Singh judgment applies only to Director Generals of Police (DGPs) of states, and not the Police Commissioner of Delhi. He further pointed out that there is no sanctioned cadre for Delhi, and it was thus impossible to have a panel of three. He then argued that this was the reason it was never insisted by UPSC that the Centre has to follow the process of empanelment when it comes to appointment of the Delhi Police Commissioner.

"The Central government has time and again given inter-cadre deputation who have reached pay level 14 and above. There has never been any dispute regarding the Central government's power to do the same. It is not something that has happened for the first time. The 2018 office memorandum is not under challenge..." the SG argued.

All options available within the AGMUT cadre was examined while looking for a suitable officer having adequate experience to handle the sensitive task of being the Delhi Police Commissioner, he added. Asthana was appointed to the post in the public interest since he had the experience required, he said.

He added that the same procedure had been followed eight times to appoint Delhi Police Commissioners since the Prakash Singh judgment was passed in 2006 till date.

After the lunch break, Senior Advocate Mukul Rohatgi made arguments on behalf of Asthana. Rohatgi opposed Alam's petition on the ground that it was not genuine and only a ‘proxy plea’.

"The PIL filed by Mr Alam is not milord a genuine PIL, apart from the fact that PILs are not maintained in service matters. This PIL is a proxy for someone who does not want to come in the front", Rohatgi contended.

Rohatgi referred to social media compaigns stated to have been conducted by advocate Prashant Bhushan against Asthana to contend that the intervention plea by Centre for Public Interest Litigation (CPIL) was ‘motivated and mala fide’.

"There are two organisations, Common Cause and CPIL who are professional public interest litigants and only one or two individuals control it, including Mr. Bhushan. I say there is a personal vendetta. When I was earlier appointed as Special Director CBI, the cases that were filed against me ... A writ petition (was filed) for my removal and Spl Director and on alleged corruption charges. While they are filing petitions, they are also on social media. This is to be deprecated", Rohatgi said.

He went on to contend, "Neither the petitioner nor the intervenor is entitled to be heard by this Court because of their malafide and motivated conduct. And no person can be allowed to carry on a campaign on social media, at the same time prosecute legal cases! ... No other competitor thought himself fit enough to say 'this is bad and I'm better'. Why should this court entertain the PIL in the case of Alam, who has copied the petition, and of Bhushan, who has carried a social media campaign without any purpose?"

During a previous hearing, the Court had reiterated concerns that the petition may have been copied by petitioner Sadre Alam from another plea moved by NGO CPIL before the Supreme Court.

Last month, Bhushan had told the High Court that the petition filed by Alam challenging the appointment of Rakesh Asthana as Commissioner of the Delhi Police was a "direct copy-paste" of the petition on the same issue he was arguing before the Supreme Court.

Meanwhile, the plea pending before the Supreme Court was directed to be heard by a different bench after Chief Justice of India NV Ramana had expressed his reservations on hearing the 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).

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