Asthana's appointment as Delhi CP; SC directions in Prakash Singh case for States, not UTs: HC

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 saying that the apex court's directions are only applicable on states and not on union territories, including the national capital.

The petitioner challenged Asthana's appointment on the ground that it was in clear and blatant breach of the directions passed by the Supreme Court in the Prakash Singh case as the 1984-batch IPS officer did not have a minimum residual tenure of six months and 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.

A bench of Chief Justice DN Patel and Justice Jyoti Singh, said while the Prakash Singh case pertained to the appointment of DGP of a State, Delhi was a Union Territory having a Legislative Assembly in accordance with provisions of Article 239AA of the Constitution.

"Reading of the directions issued by the Supreme Court, in the decisions rendered in Prakash Singh's Case (I); order dated July 3, 2018 … and the directions in Prakash Singh's Case (II), 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," the bench said.

Further, it added "The Supreme Court in Prakash Singh's Case (I) indicates that direction No 2 under the heading 'Selection and Minimum Tenure of DGP' are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police, Delhi." It said it bears repetition to state that the directions of the apex court were only intended to apply with respect to the appointments of the DGPs in the respective States and thus there is no violation of the directions of the top court in the present instance.

Both these decisions (of Prakash Singh) have all along been interpreted and understood as being applicable to the States, for appointment of police officers of the rank of DGP and above, it said.

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 of 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.

It stated that there was no reason to disbelieve the Centre's stand that while the State cadres have a sufficient number of officers available for the purpose of preparing a panel for appointment as DGP, the same was not the same in the AGMUT cadre which presently has an available pool of less than 3 IPS Officers in the DGP rank.

"The highest sanctioned post is that of Commissioner of Police, Delhi, which is in Pay-Level 17. The available pool does not have 3 IPS Officers in the DGP rank i.e. Pay-Level 16," it noted. "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 and there is thus merit in the contention that the directions of the Supreme Court in Prakash Singh's Case (I) were intended to apply only to the appointment of a State DGP," it said.

It 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.

The high court said it finds no reason to direct the Centre to deviate from the long practice and procedure followed for the appointment of Delhi Police Commissioner, for the reasons and complexities of the national capital and the AGMUT cadre.

"…We find that the directions in Prakash Singh's Case (I) and (II) are inapplicable to the appointment in question. In our view, the justification and reasons given by respondent no. 1 for appointing respondent no. 2 are plausible, calling for no interference in judicial review. This is more so, on account of the fact that the petitioner or intervener have been unable to demonstrate that a different procedure, from the one followed in appointing respondent No. 2, was followed for appointment of the erstwhile 8 Commissioners of Police, Delhi," the bench said.PTI ADS SKV RKS RKS

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