The Delhi High Court has ruled 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, dismissing the plea challenging the appointment of Gujarat-cadre IPS Officer Rakesh Asthana as the Police Commissioner of Delhi.
The Division Bench of Chief Justice D.N. Patel and Justice Jyoti Singh had, on September 27, reserved final order in the plea by a practising Advocate, which was alleged by intervener NGO ‘Centre for Public Interest Litigation’ to be a reproduction of the petition filed by the NGO before the Supreme Court.
Considering the several untoward incidences and extremely challenging law and order situations witnessed by the national capital in recent times, which in the wisdom of the Central Government necessitated the appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force, the Bench observed, “The Executive must have a reasonable discretion to select an officer it finds more suitable, based upon the career graph of such an officer, unless there is anything adverse in the service career of such an officer.”
Centre empowered to relax provisions of Rule 16 (1): Delhi High Court
On the contention that Asthana’s appointment is in contravention with Fundamental Rule 56(d) and Rule 16(1) of All India Services (Death-cum-Retirement Benefits) Rules, 1958, which bars extension of service of government employees beyond superannuation, the Bench observed that the Central Government is empowered to relax the provisions of Rule 16(1) to give extension of service to a government servant.
“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,” stated the Bench.
In addition, it was observed that the directions issued by the Apex Court in Prakash Singh case apply only with respect to the appointments of DGPs in respective states and not for the appointment of Commissioners of Police in Union Territories.
The Bench concluded by adding a word of caution against the practice of filing petitions that are a ‘cut, copy, paste’ of other’s petition. “We are constrained to observe 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 an exercise in future,” noted the Bench.
Arguments Raised
Advocate B.S. Bagga, representing the petitioner, as well as Advocate Prashant Bhushan, appearing on behalf of the intervenor NGO, had strenuously argued that Asthana’s appointment is in violation of the directions passed by the Apex Court in Prakash Singh case inasmuch as no UPSC panel was formed for selection of the Delhi Police Commissioner. Further, the criteria of having a minimum residual tenure of six months at the time of such appointments, as also the criteria of having a minimum tenure of two years, as laid down in the aforementioned case, have also been ignored.
Advocate Bagga contended that Asthana’s appointment is in contravention with Rule 56(d) of the Fundamental Rules issued by the Department of Personnel and Training, wherein it is specified that no officer can be granted an extension of service beyond the age of retirement of 60 years.Advocate Bhushan added that the ground of “undue hardship” was not available to the Centre in the instant case for relaxing the provisions to grant extension of service to Asthana.
Per contra, Solicitor General Tushar Mehta, appearing for the Centre, submitted that the instant petition is a purported projected public interest litigation and manifestly an outcome of some personal vendetta against Asthana. He further submitted that PIL in a service matter is not maintainable in light of various decisions passed by the Supreme Court.
In addition, he drew the attention of the Bench to eight other appointments, which have been made after the Prakash Singh case in a similar manner as Asthana. He added further that for Delhi, which is the capital of the country, there is a requirement of a robust Police Force of international repute and that Delhi has its own characteristic features, which do not exist in any other Commissionerate.
Arguing that the instant petition is not a bonafide public interest litigation, but a flagrant abuse of the process of law, Senior Advocate Mukul Rohatgi, who represented Rakesh Asthana, submitted that two organisations, namely ‘Common Cause’ and ‘Centre for Public Interest Litigation’, have filed a cloak of litigation against Asthana for perusing some personal vendetta. He pointed out that a campaign against Asthana has been started at the behest of these organisations by way of posting malicious tweets.
Background
A petition was filed by one Sadre Alam, seeking quashing of the July 27, 2021 order, appointing Rakesh Asthana as the Commissioner of Police, Delhi. The plea also prayed for quashing of the order approving inter-cadre deputation and extension of service period beyond the date of superannuation of Asthana. It sought a direction to the Centre to make fresh appointment to the post of the Commissioner of Police, Delhi, strictly in accordance with the directions issued by the Apex Court in the Prakash Singh case. The plea alleged that the order issued by the Government, appointing Asthana as the Police Commissioner of Delhi, was completely illegal and smacked of malafide.
Read the order here:
Rakesh-Asthana-order