Delhi High Court rejects pleas challenging Rakesh Asthana's appointment as Delhi Police Commissioner

The High Court had reserved its judgement in the matter on September 27

The Delhi High Court on Tuesday declared that the Union government had the power, jurisdiction and authority to make inter-cadre deputation of officers in public interest and the top court's judgements in the Prakash Singh case on appointment of police heads would not apply to Union Territories.

It dismissed a plea against the appointment of Gujarat cadre IPS officer Rakesh Asthana as Delhi police commissioner on July 27, just before his superannuation on July 31.

A bench of Chief Justice D N Patel and Jyoti Singh did not find "any irregularity, illegality or infirmity" in the action of the Ministry of Home Affairs in appointing Asthana, a 1984-batch officer, by adhering to the procedure followed for nearly over a decade.

"The Executive, which is responsible for the law and order situation in the National Capital, 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," the bench said.

The court said the petitioners — advocate Sadre Alam and NGO CPIL, led by advocate Prashant Bhushan — have not been able to make out a case calling for interference or even remotely demonstrate that there is any blot in the service career of Asthana, making him unsuitable for the post of Delhi police commissioner.

With regard to the contention alleging inter-cadre deputation of Asthana from Gujarat to AGMUT in violation of a 2004 order, the bench said it did not find any illegality as there is a power vested in the central government to grant relaxation to it.

The court also held that the Supreme Court's judgements in Prakash Singh case I and II on appointment of police heads after empanelment of officers by the UPSC do not apply to Union Territories.

"We have carefully perused the guidelines and are clearly of the view that the procedure concerns the appointment of DGP of a State and do not concern themselves with appointment of Police Commissioner/Head of the Police Force in the Union Territories, having a common AGMUT Cadre," the bench said.

The court also lent credence to the Union government's categorical stand that as many as eight erstwhile Police Commissioners in Delhi, have been appointed since 2006, by following the same procedure as done in Asthana's case, without any objection to statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993 either by UPSC or any other party.

The court also said that there can hardly be a dispute on the proposition of law argued by Solicitor General Tushar Mehta and Asthana's counsel that public interest litigation cannot be entertained in a service matter.

The bench agreed to the Centre's argument that it is not open for the court, sitting in a judicial review, to substitute its own decision and wisdom in matters which fell in really the domain and prerogative of the government on the basis of "its subjective satisfaction premised on objective consideration".

On a contention made by Mehta and Bhushan that Alam's plea before the court was "cut, copy and paste" of the CPIL's petition filed earlier in the top court, the bench asked him to refrain from indulging in such an exercise in future, saying this practice is certainly unhealthy and deserves to be deprecated.

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