Delhi HC clears Asthana's appointment, rules Prakash Singh orders not for UTs

New Delhi: The Delhi High Court Tuesday brushed aside the argument that the appointment of IPS officer Rakesh Asthana as Delhi Police Commissioner was in breach of the Supreme Court's guidelines in the Prakash Singh case, saying that the apex court's directions are only applicable to states and not to union territories, including the national capital.

The petitioner, Sadre Alam, challenged Asthana's appointment on the ground that it was in clear and blatant breach of the Prakash Singh judgment as the 1984-batch IPS officer did not have a minimum residual tenure of six months and no UPSC panel was formed for the appointment and the criteria of having a minimum tenure of two years has been ignored.

The bench of Chief Justice DN Patel and Justice Jyoti Singh, said a reading of both Prakash Singh judgments, "makes it clear that the directions given by the Supreme Court and the principles culled out therein were in effect applicable for appointment to the post of 'DGP of a State', to be selected by the State Government, from amongst the three senior-most officers of the Department, who have been empanelled by UPSC for promotion to the said rank. The judgement and the directions therein, have no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT cadre".

It added that the provision on minimum tenure too applied only to states and not UTs and thus the SC's directions were not being circumvented in this case.

The bench said the peculiar set up of Union Territories and the lack of a pool of sufficient officers in the appropriate Pay-Level with requisite experience in the AGMUT cadre leads to an inevitable conclusion that application of UPSC guidelines framed pursuant to Prakash Singh case would be completely unworkable for Delhi.

AGMUT Cadre comprises several segments and in each of these segments, Head of Police Forces are in different Pay-Levels. This is on account of the fact that in AGMUT Cadre, as explained by the Solicitor General, there can never be a position where the sufficient number of Pay-Level 16 - DG Rank officers would be available in one segment, with 30 years of service and 6 months residuary service, prior to their superannuation, for empanelment by UPSC, in accordance with the directions in Prakash Singh's Case (I), the bench said.

In this scenario, it stated that there was no reason to disbelieve the Centre's stand that there were not enough AGMUT cadre officers of the right rank, noting that presently, it has an available pool of less than 3 IPS Officers in the DGP rank.

On account of the unavailability of the sufficient number of officers in the pool in respect of various segments of AGMUT Cadre, we cannot but agree with Respondent No. 1 that the State Cadres have to be treated differently from the AGMUT cadre, for the purpose of empanelment of the respective Heads of the Police Force.

The HC noted that since 2006, eight erstwhile Delhi Police Commissioners have been appointed by the Centre after following the same procedure as was followed in Asthana's case and no objection to the earlier appointments were made either by UPSC or any other party.

"We do not find any irregularity, illegality or infirmity in the action of Respondent No.1 (Centre) in appointing Respondent No. 2 (Asthana), following the procedure followed for nearly over a decade," the

HC ruled.

Significantly, now a similar petition filed by Senior Advocate Prashant Bhushan will come up for hearing in the Supreme Court, where the challenge was first filed. However, after Bhushan, Alam had filed the plea in the High Court, which Bhushan alleged was a copy-paste of his.

The high court, in its 77-page verdict, said the fact that the petition is a cut, copy, paste of another petition not only reflects non-application of mind of the petitioner but also creates serious doubts on his bona fides, adding that it was parting with the judgment on a note of caution to lawyers to stop such exercises.