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The Requirements For Law And Order In Delhi Are Unique; An Experienced Police Officer Is Needed: HC On Rakesh Asthana’s Appointment As Police Commissioner [READ JUDGMENT]

The Delhi High Court has agreed with the Central Government’s position that the appointment of IPS officer Rakesh Asthana as the Delhi Police Commissioner is made strategically

By: Rashi Jain, SOA National Institute of Law

The Bench observed 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 riots/crimes, which have an international implication, which 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 apart from other factors,” observed the Division Bench of Chief Justice DN Patel and Justice Jyoti Singh while dismissing the plea. Against Asthana’s appointment as the DPC.”

The Bench further held that the Executive responsible for the National Capital’s law and order situation should have a reasonable discretion to choose an officer it deems more suited based on the officer’s career graph unless there is something terrible about the officer’s service career. It stated that Asthana is a career officer with approximately 37 years of experience in various positions who was found suitable by the Centre for an appointment as Delhi Police Commissioner on Inter-Cadre delegation from Gujarat Cadre to AGMUT Cadre by initially extending his service for one year beyond the date of his superannuation.

It observed “Learned counsels appearing for the Petitioner/Intervener have not been able to make out a case calling for interference in the decision of the Government or even remotely demonstrated that there is any blot in the service career of Respondent No.2, making him unsuitable for the post in question. Once this Court finds that the Central Government has the power, jurisdiction, and authority to grant relaxation of any of the provisions of the Guidelines issued on 28.06.2018 for Inter-Cadre deputation of All India Services officers and that the power has been exercised for valid and just reasons, we see no reason to interfere in the decision of granting Inter-Cadre deputation to Respondent No. 2.”

The Bench clarified that the Centre has the authority under Rule 3 of the Fundamental Rules to relax any Rule framed under the All-India Services Act, 1951.

Accordingly, any Regulation made thereunder if it is satisfied that the operation of such Rule/Regulation results in undue hardship in any particular case. In the instant matter, the Centre stated that most appropriate level officers in the AGMUT Cadre lacked the necessary experience for appointment as Delhi Police Commissioner.

It was added that “Keeping in mind the complexities and sensitivities in the Capital of the Country and the fact that no officer with appropriate seniority and the requisite experience was available in the AGMUT cadre, the relaxation provision was a call on, and extension of service was granted to Respondent No. 2.”

The Bench found that Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rule 16(1) of Rules, 1958, to extend service to Respondent No.2. They also found merit in the reasons furnished by Respondent No. 1 for grant of relaxation or otherwise, based on its subjective satisfaction premised on objective considerations.

The Court also backed the Centre’s position that before Asthana’s appointment, the Central Government had recruited up to eight former Police Commissioners in Delhi using the exact mechanism since 2006. Those, however, have not been disputed in the past.

In this context, the High Court stated

“It is a settled law that 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 a Statute or Executive Instructions. Therefore, applying the principle of contemporanea expositio, 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. It is 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.”

Rakesh Asthana, Delhi Police Commissioner, is a 1984-batch Gujarat cadre IPS officer who assumed the position of Delhi Police Commissioner in July 2021. However, four days before his retirement, the Ministry of Home Affairs issued an order extending his employment initially for one year beyond the date of his superannuation on 31.07.2021. Asthana’s appointment had many obstacles on multiple grounds, including that it took place just four days before his retirement. 

This was in direct violation of the Hon’ble Supreme Court’s decision in Prakash Singh & Others v. Union of India, wherein it was held that the Union Public Service Commission (UPSC) should, to the extent possible, consider only officers with two years of service remaining for such appointments.

The Centre had argued, among other things, that the case’s final operative orders applied only to the State for the appointment of DGPs and not to the Union Territories.

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