Appointment of Rakesh Asthana as Delhi Police Commissioner completely illegal on multiple grounds: CPIL in SC

A public interest litigation (PIL) petition has been filed before the Supreme Court for quashing of the order appointing Rakesh Asthana as the Commissioner of Police, Delhi and granting him inter-cadre deputation and extension of service.

The plea was filed by NGO Centre for Public Interest Litigation (CPIL) through advocate Prashant Bhushan against an order passed by the Ministry of Home Affairs granting Asthana deputation, extension of service and appointing him as Delhi’s Commissioner of Police just four days before Rakesh Asthana was slated to retire

The petition stated that the order of the Central government is completely illegal on multiple grounds, as per a Bar & Bench report.

It was contended that the order under challenge is blatantly violative of the judgement by the Supreme Court in Prakash Singh vs. Union of India since Asthana did not have the required minimum residual tenure of six months, no UPSC panel was formed for his appointment and the criteria of a minimum tenure of two years was ignored, as directed in the judgement.

The petition clarified that even though the directions in Prakash Singh were regarding the post of DGP of a State, they are applicable to the current issue since the post of Commissioner of Police, Delhi is akin to the post of a DGP.

National Herald had earlier carried a report in which the former IPS officer Prakash Singh had pointed out that the SC needed to interpret this issue as it was a ‘grey area’.

The CPIL’s plea also highlighted that in a High-Powered Committee meeting held in May 2021 comprising the Prime Minister, the leader of opposition and the Chief Justice of India, the Central government had attempted to appoint Asthana as the CBI Director. However, the proposal was reportedly rejected by the CJI NV Ramana citing the “six-month rule” laid down in Prakash Singh.

As per the Fundamental Rule 56(d) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 no extension can be granted in service beyond the age of 60 years, the petition said.

Though the order under challenge clarified that the extension has been granted by relaxing Rule 16 that allows for extension in a special case for “public interest”, the petition reiterated that no such exception can be carved out for Asthana since he was appointed to the post while on the verge of his retirement.

“The exception is to provide them with continuity in service for a certain period in order to enable them to complete their exigent tasks and to ensure that public interest doesn’t suffer because of their retirement... in no manner whatsoever envisage a situation or provide any legal basis for extending service of an officer who is serving on some other post and who is on the verge of his retirement in order to appoint him to a new post, and that too to a different cadre and department,” the plea said.

The plea also contended that to relax any requirements such as those under Rule 16, Rule 3 must be satisfied. Rule 3 confers the Central government the “Power to relax rules and regulations” in cases of “undue hardship” to a particular officer. However, no undue hardship was traced to Asthana, it was submitted.

In fact, Asthana had already reached Super Time Scale in his home cadre, therefore becoming ineligible to avail inter-cadre deputation, the petition stated.