Delhi High Court hears plea challenging appointment of Rakesh Asthana as Delhi Police Commissioner [LIVE UPDATES]

The Delhi High Court continues hearing Petition challenging the appointment of Rakesh Asthana as Commissioner of Delhi Police. .During the previous hearing last week, Chief Justice DN Patel reiterated concerns that the petition may have been copied by petitioner, Sadre Alam, from another plea moved by NGO CPIL before the Supreme Court..Read details on the previous hearing..[Rakesh Asthana case] You should not copy 90 percent of the petition: Delhi High Court to petitioner.Advocate BS Bagga: Last time lordships had a query about "super time" scale. Advocate Bagga: I am relying on Prakash Singh judgment. Union is saying it doesn't apply to Union Territory. But please see para ....Advocate Bagga refers to Union of India’s affidavit: They have extracted the relevant portion of Prakash Singh. Page number 12.Chief Justice DN Patel: In our copy page number is not given.Counsel: It is in running page 286..Advocate Bagga reads from the judgment extract referred to, which also refers to "Union Territory." Advocate Bagga: They have mentioned to whom it is applicable (refers to various categories of personnel). Again, judgment says, the aforesaid directions shall be complied by Central, State, and UT..Advocate Bagga: I just want to rely on para 26 also. Advocate Bagga: reads the extract referred to from Prakash Singh judgment. Submits, it applies to Police Chief as well..Advocate Bagga: Above (the rank of) SPs, this judgment is applicable to all. Chief of Police in Delhi is Commissioner, Respondent number 2 (Asthana).Advocate Bagga: The order has been passed under compliance of Rule 16(1). In 16 (1) the DGP has not been covered. So, they are saying in the order, these 16 (1) rules have been relaxed. When it doesn't even apply to DGP, how is it relaxed for the DGP?(Rule 16 relates to retirement age).Advocate Bagga: reads Rule 16.Advocate Bagga refers to the challenged order dated July 27, deputing Rakesh Asthana, and extending his service for a period of one year beyond retirement age or until further order.Advocate Bagga contends that such relaxation of retirement of age cannot be extended citing Rule 16 (1) when Rule 16 does not cover DGP..Advocate Bagga: In the counter of the Union, they have made some objections. They say PIL is not maintainable since it is a service matter. This is a writ of quo warranto.. writ of quo warranto is permissible in service matters (relies on a judgment)..CJ Patel: If you are relying on a judgment, please read it. If you are not, we will not note down also!.. Which para should we note down?CJ Patel: You can't say, 'you find out from the whole judgment'. You should have brought paragraphs. You bring original copy and point out para..Advocate Bagga reads certain issues raised by Union of India.Advocate Bagga: In 2006, the Union in Prakash Singh, they have not even mentioned this practical problem then before the Supreme Court.Advocate Bagga refers to Delhi Police Act and GNCTD Rules of 1993 cited. Says 2006 judgment of Prakash Singh will prevail..Appointment of Delhi Police Chief has to be done following Prakash Singh case, forming a panel. Adds that Union would have to address any practical difficulties, Advocate Bagga submits..CJ Patel again tells Advocate Bagga that he will not note down any judgment which is not read and only cited.Advocate Bagga reads an extract of a judgment, which refers to Prakash Singh judgment..Appointment of DGP of a State should be purely on merits and to insulate the officer from any influence, should get TWO years of service, regardless of superannuation: Advocate Bagga reads from judgmentAdvocate Bagga adds that Asthana was given 1 year extension..Advocate Bagga reads from a para that speaks against the appointment of officers who are on verge of retirement.Advocate Bagga: The judgment is saying "minimum residual tenure of six months" should be there. Here, four days before the retirement, the appointment is made. This is bad in law..Advocate Bagga concludes.CJ Patel: Anyone else wants to argue?.Adv Prashant Bhushan: In para 3 of Union of India’s affidavit, they have said something interesting and intriguing.They say "I state and submit... to oppose petition... it is a verbatim reproduction of petition by intervenor before SC... this is a gross abuse.. cannot be lightly brushed aside... shows that petitioner has not applied its mind...".Adv Bhushan: The PIL violates many rules, such as disclosing source of information. Quite apart, it was a copy paste, apparently the original petition contained my name also.Thereafter, when objection was raised by registry, he corrected those. Unfortunately, he could not correct any of the typographical errors..Adv Bhushan reads from UOI’s affidavit that even if petition is dismissed with costs, the benefit should not go to the intervenor.“Are they meaning to say if my pending petition in Supreme Court is heard quickly, some benefit would go to CPIL?” Bhushan asks..Adv Bhushan: 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..CJ Patel asks how the petitioner could have got a copy of CPIL's plea in the first place.Adv Bhushan: When I file an important PIL, the media asks for a copy...Adv Bagga interjects, seeks to make a submission. Court asks him not to interrupt..Court asks Bhushan to continue arguments. Adv Bhushan submits that CPIL had challenged Rakesh Asthana's appointment as DCP on three grounds, the first being on the basis of Prakash Singh judgment, which UOI says is not applicable..Adv Bhushan: Prakash Singh, the 2006 judgment, which we have quoted. If your Lordships take Sadre Alam's petition, it is quoted at page ... 30, para 31...Bhushan reads the paragraph..Adv Bhushan reads from Supreme Court clarification that someone on verge of retirement cannot be appointed..Adv Bhushan: They say he has to be selected from three senior officers empanelled.. first UPSC must select and prepare a list of officers empanelled on basis of length of service, record etc. for heading the police force..Adv Bhushan: Police Commissioner heads the Delhi Police. The govt can select from the three names, but the three names have to come from UPSC. UPSC did not play any role in this matter. UPSC was never consulted. This is another violation, Bhushan says .Adv Bhushan: 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.Again and again they are saying these directions apply to Union Territories also. Merely because the final operative directions say that they apply to DGP (it does not mean it does not apply to DCP, Delhi). .CJI pointed out that directions in Prakash Singh that appointee should have residual tenure of six months was not complied, that is why High-Powered Committee rejected the name of Rakesh Asthana as CBI Chief, Bhushan argues..Union of India has not denied that this is why Rakesh Asthana's name was rejected unanimously when it came to the appointment of CBI Chief, Bhushan argues. Adv Bhushan: They have appointed him for one year, when this judgment says it has to be for 2 years. Third violation, for being appointed as Police Chief, you need residual tenure of 6 months. This was the reason his name was rejected for CBI director..Adv Bhushan: Union of India says first, appointment committee of cabinet has conveyed for inter-cadre transfer; 2 they extend his service initially for a period of 1 year or further orders, in relaxation of Rule 16. The 3rd thing, he is therefore appointed as Police Commissioner..Adv Bhushan: Both these things are hit by the Rules, as well as his extension of service for one year.Adv Bhushan: There are at least three judgments we have mentioned which deal with the power of relaxation. First is Sayyad Ali Rizwi v. UOI. These judgments say "undue hardship" means "undue hardship" for the officer..Adv Bhushan: Govt says there is no officer who is competent in the AGMUT cadre, who is competent enough to be appointed as Commissioner of Delhi Police. They say that Rakesh Asthana is the only officer they could find who is fit to be appointed, throughout the country, as DCP.Therefore, they say there is no need to consult the UPSC etc..Adv Bhushan: (Union of India says) "We feel there is no officer in the AGMUT cadre who is fit enough to be appointed DGP" - this was a decision to be made by the UPSC!.Adv Bhushan: I could have understood if UPSC said (that there is no other competent officer). Where is the question of Govt of India itself deciding? That is to be decided by UPSC! .Adv Bhushan: It is astounding for so many years, officers have been appointed from AGMUT. Just see the demoralizing effect that would have on AGMUT cadre to be told there is no one in your cadre fit enough to be appointed as DCP!... That they have to bring an officer from Gujarat who is retiring in four days!.Adv Bhushan refers to the three judgments mentioned by intervenor CPIL in its plea. All of them state that relaxation of the retirement age may be done if it causes hardship to the CANDIDATE, not the govt..Adv Bhushan reads rules regarding extension of service for certain categories of personnel. Adv Bhushan: This doesn't apply to police chief. It only applies to few posts, to which this gentleman does not belong..There are only few categories, and that is also subject to the ground that they are already holding this post! You can't bring someone from another cadre and give him a post by extension, Bhushan argues..There are 2 rules, Rule 56 of the fundamental rules and Rule 16. Both say the same thing. Relaxation is only for individual hardship. There was no question of granting him an extension or granting him an extension by bringing him to a new post!: Bhushan..Adv Bhushan sums up the grounds for challenging Rakesh Asthana appointment as Delhi Commissioner of Police: 1. Violation of Prakash Singh (three grounds); 2. Violation of two rules (mentioned above); 3. Violation of rules on inter-cadre transfer..There is no question of inter-cadre transfer, Respondent 2 (Rakesh Asthana) has already reached super-time scale, Bhushan contends. Adv Bhushan: He is in level 17. There is no question of any inter-cadre deputation. Now what they say is, and this is their trump card, they say we have earlier also done these violations. 'Similar violations of the rule we have done'...for 4 officers.Adv Bhushan: The fact that they have flouted or violated these rules earlier, whether it's Rule 56 or any other rule or Prakash Singh's Judgment earlier - does not give them license to violate and flout it!.Adv Bhushan: Here, it is so egregious. 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. Adv Bhushan: This appointment is totally and grossly illegal and therefore, it deserves to be quashed. I have already pointed out that our petition is pending in Supreme Court. This petition before this court is complete copy-paste, but Lordships may take a view..Adv ML Sharma seeks to interject, makes arguments about plea, says each petitioner should use own creativity.CJ Patel: It is his matter, he has copied, we will see what we will do. You are assisting the petitioner? Adv Sharma: Of course.CJ Patel: We are not allowing, he is capable of arguing..CJ Patel: We are not allowing two lawyers for one petitioner. Court master, please mute him. 100 persons are watching this..Solicitor General Tushar Mehta argues for Union, says that plagiarised petition is an abuse of process of law and a manifest outcome of personal vendetta. Adds that if petition is shared in media, it would not lie in mouth of intervenor to object it was copied..SG Tushar Mehta reads: Intervenor and Petitioner are mere busybodies. Intervenor selectively files for reasons that are not comprehensible. The role of such busybodies must come to an end.Intervenor may have some personal vendetta against Respondent 2 (Asthana) but PIL is not the route ... SG reads from affidavit..SG Mehta reads from a judgment that says that the real face of motivated PIL petitioners is not often revealed. SG Mehta: When they were arguing, they say 'there are other good officers'. Are they the officers who are actually aggrieved?.SG Mehta: This has spawned an industry of vested interest in litigation. PIL is an industry. It is a career by itself, which was not envisaged by the Constitution.SG Mehta: 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 govt, they fulfil their unfulfilled desires by such PILs saying 'why this appointment is wrong, why this policy is wrong' - that is for elected govt, SG Mehta argues..Selecting 'A' over 'B' is not ground for the Court to intervene, SG Mehta argues. Lawyer appearing for intervenor chooses not to challenge the appointment of eight other CPs, that aggravates the need for examining motives, SG Mehta argues..SG Mehta refers to Prakash Singh Judgment, which refers to "DGP" to be selected by "State." SG Mehta: This for the State, not UTs..SG Mehta: Kindly see the last part. The directions would apply to Centre, State and Union Territory "AS THE CASE MAY BE". All directions are not applicable to UT..SG Mehta: Supreme Court never directed that all directions should be complied by everyone.This is the judgment of Supreme Court delivered in 2006. How stakeholders have interpreted this judgment indicates how judgment has been accepted, to mean what it means. Mehta refers to doctrine of "contemporanea expositio"..SG Mehta: This is how the judgment has been interpreted by Central Govt, State govt, UPSC. After judgment in Prakash Singh I, UPSC issued guidelines. I have made a statement on oath that these guidelines have been followed from 2006 onwards till date..SG Mehta: These guidelines were placed before Supreme Court by UPSC in Prakash Singh and no one has objected that this is a wrong understanding.SG Mehta: Delhi has a different status (from State). It is a UT..SG Mehta: Delhi is a part of AGMUT cadre, that is all UTs together. There is no state cadre (for Delhi).There is no sanctioned cadre for Delhi (alone) ... In the case of Delhi, it is impossible to have a panel of three. That is why Supreme Court says... "as the case may be.".SG Mehta: Union Territories are categorically kept out of the purview of the Prakash Singh judgment. Why it was kept out? Come to page... This again is not disputed by both 'public-spirited citizens'.It is only in Delhi, the highest post, CP is level 17. For all others, the head is below level 17. In Arunachal, Mizoram he can be 16. In Dadra 13 etc..SG Mehta: Since long, this is the (practice) ... Since 1978, under Delhi Police Act.SG Mehta continues reading: ...You can't compare Delhi Police Commissioner with any other Commissioner....SG Mehta: What is being expected is impossible to perform. We don't have the pool of officers (to form a panel of three).Mehta argues that this is why it was never insisted by UPSC that the Centre has to follow the process of empanelment when it comes to appointment of Delhi Police Commissioner. .SG Mehta: UPSC, which objects if there is a deviation by States, they have never objected. Eight appointments (of Police Commissioners) have been made after the Prakash Singh case.SG Mehta: ...This is why there is a special Delhi Police Act, and special rules are there for appointment Delhi Police Commissioner....SG Mehta refers to contentions regarding inter-cadre transfer. SG Mehta: His case is that an officer who is below pay level 14 can only be brought on an inter-cadre deputation and since Asthana is above level 14, it would not apply. How wrong this is?.SG Mehta refers to the Inter-cadre deputation policy, framed in 2018 and in vogue. In all cases of inter-cadre deputation, wherever relaxation of these guidelines is required, the case will be put up to a committee... : SG Mehta reads..SG Mehta refers to clause (c) of the rule: If we read it in isolation, any officer above level 14 is not entitled to inter-cadre deputation. But it has to be read with a preceding clause (a), which is an "overarching" relaxation clause.It is a general power, in a given set of facts, you can relax the guideline 2(1)..SG Mehta: The Central govt 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 govt'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. Because only an affected party can challenge. Not a PIL petitioner..SG Mehta: Neither has there been a lack of competence, nor there is any procedural irregularity to give inter-cadre deputation to R2 (Asthana) The task of finding a suitable IPS officer having multifarious experience, paramilitary experience... was (examined) by the competent authority by options available in AGMUT cadre..We may have had some officers in mind. Govt examined all of them (in AGMUT), then came to the decision that it may not be best to entrust the sensitive task to any of them, SG Mehta says.In public interest, it was decided that Rakesh Asthana be appointed, he adds..SG Mehta challenges Bhushan's contention that relaxation of retirement age for "hardship" refers to candidate's hardship. SG Mehta: Age of retirement can never pose a hardship (to candidate). It has to be interpreted as hardship of govt. Can a rule be read in such a truncated fashion?.SG Mehta: I have pointed out that exercising the same powers, following the same procedure - these are the officers appointed as Commissioners of Police up till now.These are the officers in whose case, there is an exercise of powers of Rule 3. It is not being used for the first time in Respondent No. 2's (Asthana) case. .SG Mehta: The very fact that the same procedure is following 8 times after Prakash Singh and has never been questioned by neither petitioner nor intervenor is ground enough to contend that there is something further than 'public interest'.Considering the particular position of Delhi, when a candidate has been appointed on subjective satisfaction in exercise of available powers, it cannot, in a PIL, be a subject matter of judicial review, Mehta says..SG Mehta: It can be (subject to judicial review) if a potential candidate comes and says I am aggrieved.SG Mehta says he agrees with Bhushan on one count: Fundamental Rule 56 is not followed. (But that is) because it is not applicable. Because it has been incorporated in Rule 16 and there is a provision for extension in Rule 16..SG Mehta: That Rule has no application because, for all India officers, Rule 56 is verbatim incorporate in Rule 16 of All India Services rules. Solicitor General Tushar Mehta concludes..Senior Advocate Mukul Rohatgi informs that he appears for Rakesh Asthana. CJ Patel: We will continue after recess. 2.15..Bench has risen for lunch break. Hearing slated to continue at 2.15 PM..Hearing resumes. Senior Advocate Mukul Rohatgi: I appear milord for Respondent No. 2, the selected incumbent (Rakesh Asthana)..Sr. Adv Rohatgi: 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.The only disclosure (in petition) is that the petitioner is an advocate. Apart from this, there is nothing in the petition. There is nothing to say how he is concerned by the selection. What is troubling the petitioner except to say he is an advocate?.Sr. Adv Rohatgi (refers to judgment): Kindly mark the nature of directions issued... See no. 4. "Court will be prima facie satisfied of the correctness of the contents of PIL." There is no correctness, he has only copied Bhushan's PIL.There is no public interest. There is no gravity, there is no urgency, there is no public interest. .Court should ensure there is no personal claim in PIL, should ensure that it is meant to prevent public harm. What is the public harm? He (Rakesh Asthana) has an unblemished service, was appointed keeping in mind the requirements for Delhi Police Commissioner, Rohatgi argues..Sr. Adv Rohatgi: 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..Sr. Adv Rohatgi: I say there is a personal vendetta. When I was earlier appointed as Special Director CBI, the cases that were filed against me, dismissed, and curative has been filed, I don't know what happened..Sr. Adv Rohatgi: A writ petition (was filed) for my removal and Special Director and on alleged corruption charges. While they are filing petitions, they are also on social media. This is to be deprecated..Sr. Adv Rohatgi: Your Lordships will be pleased to find the tweets of Mr. Bhushan on Social Media when I was made Special Director .... (reads) "seems Modi likes people who figure in diaries...".Sr. Adv Rohatgi reads a tweet by Adv Prashant Bhushan which said 'Supreme Court would be remembered for three notorious judgments.' Apart from anything it is gross contempt. I don't think your Lordship should entertain anything from him. One of the judgments is Asthana..Sr. Adv Rohatgi refers to more tweets by Adv Prashant Bhushan: This is the way he has referred to the Prime Minister! Scant respect for the Supreme Court, the bureaucracy, for the Prime Minister. Article 226 jurisdiction cannot be abused by people of this stature!.Sr. Adv Rohatgi: 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!.Sr. Adv Rohatgi: That is something to be shunned! If he wants to go to social media, he should not come to court..Prakash Singh judgment directions are only for full States which have DGP. Not meant for Delhi, which has a commissionerate. The appointment is to be made in consultation with LG. None of this applies to appointment of DGP, Rohatgi argues..Delhi doesn't have a full-fledged cadre. It has a cadre with other Union Territories. Officer appointed needs to deal with peculiarities of Delhi. That is why there was a need for inter-cadre transfer, Rohatgi argues..Rohatgi supports SG Mehta's argument that "hardship" for relaxation of retirement age does not refer to "hardship" of candidate.Sr. Adv Rohatgi: Hardship is the hardship of situation. Hardship is that there was no suitable officer. Hardship is faced by the authority for appointment..Sr. Adv Rohatgi: What we normally find is, if someone is being appointed to a high post, competitors lose no time to go to court. There is no competitor challenge in this case..Sr. Adv Rohatgi: The appointment of DGP Punjab was challenged by three of his peers, by following this Prakash Singh rule. Judgment is awaited from Supreme Court. People are always aggrieved if someone at the same level is... service jurisprudence is only that..Sr. Adv Rohatgi: But here there is no challenge! Why is that? They are all people educated, at the pinnacle of career. No one has challenged because the power of appointment, of inter-cadre transfer is there..Sr. Adv Rohatgi: 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 petitioenr, and of Bhushan, who has carried a social media campaign without any purpose..Advocate Bagga objects to allegation that Sadre Alam (petitioner) plea is copied: Bhushan's petition in Supreme Court was filed on Aug 6. Was lying in objections, on 18th, I filed. Till then also, it was not listed in Supreme Court..Adv Bagga: Supreme Court, while referring to this court, has mentioned that the petitioner of Mr. Sadre Alam should be heard and Mr. Bhushan can intervene and make his arguments. May I read the order? CJ Patel: No, we will see..Hearing over.

Delhi High Court hears plea challenging appointment of Rakesh Asthana as Delhi Police Commissioner [LIVE UPDATES]

Related Stories