Delhi High Court: While dismissing the challenge to Rakesh Asthana’s appointment as Commissioner of Delhi Police, Division Bench of D.N. Patel, CJ and Jyoti Singh, J., expressed that,
It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.
In the present matter, petitioner was aggrieved by the impugned order whereby Inter-Cadre deputation was granted to respondent 2 – Rakesh Asthana from Gujarat Cadre to AGMUT Cadre as also an extension of his service, initially for a period of one year beyond the date of his superannuation or until further orders, whichever is earlier and his appointment as Commissioner of Police, Delhi.
Challenge to the Order with regard to approval being granted by Appointments Committee of Cabinet for Inter-Cadre Deputation of Respondent 2 as well as the extension of his service beyond the age of superannuation was also laid.
Respondent 2 an IPS Officer of Gujarat Cadre with an experience of approximately 37 years was appointed as Commissioner of Police, Delhi.
The petition was filed on the following grounds:
i) Violation of Guidelines issued by the Supreme Court in Prakash Singh’s Case (I) and (II)
ii) Violation of mandate of provisions of FR-56(d).
iii) Central Government has no power under Rule 3 of Rules, 1960 to relax Rule 16(1) of Rules, 1958.
iv) Violation of provisions of DoPT O.M. dated 08.11.2004, pertaining to Inter-Cadre deputation of officers belonging to the All-India Services.
Analysis, Law and Decision
High Court while reading the directions issued by the Supreme Court in Prakash Singh’s Case (I) and (II) made 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 State Government, from amongst the three senior most officers of the Department.
The said Judgment has no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre.
Further, the Court stated that the Supreme Court’s decision in Prakash Singh’s Case (I) indicates that direction 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.
Court agreed with respondent 1 that State Cadres have to be treated differently from the AGMUT Cadre due to the unavailability of sufficient number of officers in the pool in respect of various segments of AGMUT Cadre.
From the perspective of service jurisprudence and good administration, it is no doubt a healthy practice to ensure that senior officers are not superseded on account of mere technicalities.
Bench expressed that Delhi, being the Capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate.
Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders. Thus, it is imperative that “free movement of joints” is given to the Central Government for appointment of Commissioner of Police, Delhi, keeping in mind the complexities obtaining in the Capital.
Respondent 2’s appointment as Commissioner of Police, Delhi was made by following the statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993.
Where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of s Statute or Executive Instructions.
Therefore, applying the principle of contemporanea expositio, if a procedure has been followed by the Central Government since 2006, with the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage.
In view of the above stated, Court sees no reason to direct respondent 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre.
Various Supreme Court decisions have explained the principle of contemporanea exposition.
As per the decision of Supreme Court in Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, matters pertaining to Public Order, Police and Land lie outside the ambit of the legislative powers of the Assembly and hence are outside the Executive functions of the GNCTD.
In the present matter, a statutory provision being Section 6 of the Delhi Police Act, 1978 empowers the Lieutenant Governor to make a proposal for appointment of Commissioner of Police, Delhi and thus no illegality was found in the appointment.
Violation of Provisions of the DoPT O.M. dated 8-11-2004 regarding the Inter-Cadre Deputation of Respondent 2
Contention was that respondent 2 was not eligible for Inter-Cadre deputation as he had reached the Super Time Scale in 2002 and Inter-Cadre deputation was permissible only before reaching the Super Time Scale in the Home Cadre.
Court expressed those provisions of Clause (a) of O.M. dated 28-6-2018 grant power of relaxation of any of the provisions of the Guidelines stipulated in O.M. dated 8-11-2004.
Further, Court added that there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of Clause (b) of the DoPT O.M. dated 28-6-2018 and Clause 2(i) of DoPT O.M. dated 8-11-2004.
The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action.
Counsels for Petitioner/Intervener could not make out a case calling for interference in the decision of the Government or even remotely demonstrated that there was any blot in the service career of respondent 2 making him unsuitable for the post in question.
Office Memorandums are Guidelines, to effectively regulate the services of the employees and bring uniformity therein. In changing conditions or peculiar circumstances, Government may require to deviate from a certain condition and it is for this reason that provisions for relaxation of the Guidelines are incorporated in the Rules and Executive Instructions.
Respondent 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958
As per Rule 3 of Rules, 1960, Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case.
Hence, in Court’s opinion Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rules 16(1) of Rules, 1958 to give extension of service to respondent 2.
Bench remarked that,
“It is not open for this Court, sitting in a judicial review, to substitute its own decision and wisdom for that of the Central Government as it is really the domain and prerogative of the Government to take a decision for grant of relaxation or otherwise, on the basis of its subjective satisfaction premised on objective considerations.”
While FR 56(d) deals with the extension of service of a Government Servant, in general, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the All India Services.
Therefore, in the present matter, respondent 2 is an IPS officer and Member of the All India Services, the service conditions are more aptly governed by Rules, 1958 and the provisions of Rule 3 of Rules, 1960 would apply for relaxation of the provisions of Rule 16(1) of Rules, 1958. Hence, it would be irrelevant to deal with the issue of alleged violation of FR-56(d) once the Central Government has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960.
Concluding the matter, High Court added a note of caution to the petitioner while noting that Solicitor General and Prashant Bhushan had strenuously argued that the pleadings in the present petition are a “cut, copy, paste” of the petition filed by the Intervener before the Supreme Court and that such a practice must be discouraged and strictures be passed against the Petitioner, Court observed that such a practice is certainly unhealthy and deserves to be deprecated and the petitioner shall be well advised to refrain from indulging in such exercise, in future.
In view of the above petition was dismissed. [Sadre Alam v. Union of India, 2021 SCC OnLine Del 4691, decided on 12-10-2021]
Advocates before the Court:
B.S. Bagga, Advocate
Mr. Tushar Mehta, Solicitor General of India with Chetan Sharma, Additional Solicitor General, Mr. Amit Mahajan, Central Government Standing Counsel, Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Akshay Gadeock and Mr. Sahaj Garg, Advocates for Respondent No.1.
Mr. Mukul Rohatgi, Senior Advocate, Mr. Maninder Singh, Senior Advocate with Ms. Diksha Rai, Ms. Devanshi Singh, Mr. Ankit Agarwal, Mr. Prabhas Bajaj and Ms. Palak Mahajan, Advocates for Respondent No.2.
Mr. Prashant Bhushan, Ms. Neha Rathi and Mr. Jatin Bhardwaj, Advocates for Intervener.