In a very significant development, we saw how just recently on October 12, 2021, the Delhi High Court in a learned, laudable, landmark and latest judgment titled Sadre Alam Vs Union Of India & Anr in W.P.(C) 8654/2021 & CM APPL. 26788/2021 (stay) dismissed a petition filed by a person named Sadre Alam which challenged the appointment of IPS officer Rakesh Asthana as the Commissioner of Delhi Police. We saw how a huge controversy had erupted over his appointment and Opposition leaders had vehemently objected to the way in which he was appointed but the Delhi High Court was not on same page with them and it gave the reasons for the same in its 77-page judgment. It must be noted that a Division Bench of Delhi High Court comprising of Chief Justice DN Patel and Justice Jyoti Singh while dismissing the petition held that the directions issued by the Supreme Court in the decisions rendered in Prakash Singh’s Case (I) and Prakash Singh’s Case (II) are applicable only for appointment to the post of “DGP of a State” and not the Union Territories.
To start with, this notable judgment authored by Chief Justice DN Patel for a Bench of Delhi High Court comprising of himself and Justice Jyoti Singh sets the ball rolling by first and foremost observing in para 2 that, “We have heard learned counsel appearing on behalf of the Petitioner at length. Petitioner is aggrieved by the impugned order dated 27.07.2021, whereby Inter-Cadre deputation has been granted to Respondent No.2 – Mr.Rakesh Asthana, from Gujarat Cadre to AGMUT Cadre as also extension of his service, initially for a period of one year beyond the date of his superannuation on 31.07.2021 or until further orders, whichever is earlier and his appointment as Commissioner of Police, Delhi. Challenge is also laid to the order dated 27.07.2021 whereby approval was granted by Appointments Committee of Cabinet for Inter-Cadre deputation of Respondent No. 2 as well as extension of his service beyond the age of superannuation.”
To put things in perspective, the Bench then while elaborating further states in para 3 that, “Respondent No. 2 is a 1984 Batch officer of the Indian Police Services (‘IPS’), Gujarat Cadre and his date of superannuation was 31.07.2021. Vide the impugned order dated 27.07.2021, Respondent No. 1 has granted Inter-Cadre deputation to Respondent No. 2 and extended his services beyond the date of superannuation. Vide the same order, Respondent No. 2 has been appointed as Commissioner of Police, Delhi. Assailing the said order, it was contended by learned counsel appearing on behalf of the Petitioner that the impugned order (Annexure P-2 to the memo of this petition) has been passed in total violation of provisions of Rule 56(d) of the Fundamental Rules and Supplementary Rules (hereinafter referred to as ‘FR-56(d)’); All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as ‘Rules, 1958’); All India Services (Conditions of Service – Residuary Matters) Rules, 1960 (hereinafter referred to as ‘Rules, 1960’), as well as in violation of Office Memorandum dated 08.11.2004, issued by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, (hereinafter referred to as ‘DoPT’).”
It is worth noting that the Bench then most significantly enunciates in para 63 that, “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, if 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 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. We accordingly see no reason to direct Respondent No. 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre and in particular, when we find that the directions in Prakash Singh’s Case (I) and (II) are inapplicable to the appointment in question. In our view, the justification and reasons given by Respondent No. 1 for appointing Respondent No. 2 are plausible, calling for no interference in judicial review. This is more so, on account of the fact that the Petitioner/Intervener have been unable to demonstrate that a different procedure, from the one followed in appointing Respondent No. 2, was followed for appointment of the erstwhile 8 Commissioners of Police, Delhi.”
Be it also noted, the Bench then hastens to add in para 67 that, “There is no dispute that Delhi is a Union Territory having a Legislative Assembly, in accordance with provisions of Article 239AA, Part-VIII – Union Territories, of the Constitution of India. As per the decision rendered by the Hon’ble Supreme Court in Government of NCT of Delhi vs. Union of India & Anr., (2018) 8 SCC 501, matters pertaining to Public Order, Police and Land lie outside the ambit of the legislative powers of the Assembly and hence are outside the Executive functions of the Government of NCT of Delhi. These are matters where the Hon’ble Lieutenant Governor, Delhi would act in the exercise of his functions at his discretion and to the extent to which there has been a delegation or entrustment by the Hon’ble President of India to him under Article 239 of the Constitution of India. In the present case, a statutory provision being Section 6 of the Delhi Police Act, 1978, as aforementioned, empowers the Hon’ble Lieutenant Governor to make a proposal for appointment of Commissioner of Police, Delhi and thus we find no illegality in the appointment.”
As a corollary, the Bench then holds in para 68 that, “In view of the aforesaid conspectus of judgements, expounding the principle of contemporanea expositio, we do not find any irregularity, illegality or infirmity in the action of Respondent No.1 in appointing Respondent No. 2, following the procedure followed for nearly over a decade.”
Quite significantly, the Bench then makes it amply clear in para 75 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 situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors. As brought out in the counter affidavit by Respondent No. 1, the impugned order was passed keeping in background the aforesaid factors. 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. 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. Needless to state that Office Memorandums are Guidelines, to effectively regulate the services of the employees and bring uniformity therein. In changing conditions or peculiar circumstances, Government may require to deviate from a certain condition and it is for this reason that provisions for relaxation of the Guidelines are incorporated in the Rules and Executive Instructions. The present case is no different or solitary, where the power of relaxation has been exercised by the Government, in public interest. The contention is therefore rejected and the prayer of the Petitioner to declare the Executive action, null and void cannot be acceded to.”
It cannot be glossed over that the Bench then underscores in para 79 that, “Rule 3 of Rules, 1960 is also reproduced hereunder, for ready reference:-
“3. Power to relax rules and regulations in certain cases.- Where the Central Government is satisfied that the operation of-
(i) any rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or
(ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulations, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.” (emphasis supplied).”
Quite ostensibly, the Bench then stipulates in para 80 that, “Plain reading of the aforesaid Rule 3 shows that the Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case. The relaxation can be to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case, in a just and equitable manner.”
Simply put, the Bench then observes in para 81 that, “Rule 3 is an enabling provision, empowering the Central Government to relax the Rules framed under the All India Services Act, 1951, which would include Rule 16(1) of Rules, 1958. There is no dispute between the parties that the services of Respondent No. 2 are governed by Rule 16(1) of Rules, 1958 and therefore as a corollary, the Central Government has the power to relax the provisions of Rule 16(1) of Rules, 1958. It is the stated case of Respondent No. 1, on affidavit, that power of relaxation has been exercised by the Central Government and provisions of Rule 16(1) of Rules, 1958 have been relaxed to grant extension of service to Respondent No. 2 by invoking Rule 3 of Rules, 1960 read with Section 21 of the General Clauses Act, 1897. It is further averred in the affidavit that during the process of appointment of Commissioner of Police, Delhi, the CCA was faced with precarious situation where it found that most of the appropriate level officers of AGMUT Cadre were not having the requisite experience for appointment of Commissioner of Police, Delhi. Keeping in mind the complexities and sensitivities in the Capital of the Country and the fact that no officer with appropriate seniority and requisite experience was available in the AGMUT Cadre, the relaxation provision was invoked and extension of service was granted to Respondent No. 2. We find that Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rule 16(1) of Rules, 1958, to give extension of service to Respondent No.2. We also find merit in the reasons furnished by Respondent No. 1 for grant of relaxation and 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. We also find that this is not the first of its case where powers of relaxation of Rule 16(1) of Rules, 1958 have been exercised by the Central Government. In para 49 of the counter affidavit, Respondent No. 1 has enumerated the names of 9 IPS officers, in whose cases, the service tenure was extended, by invoking the powers under Rule 3 of Rules, 1960. For the same reasons, we reject the contention of the Petitioner/Intervener that there is a violation of FR-56(d). Provisions of FR- 56(d) are pari materia to the provisions of Rule 16(1) of Rules, 1958. While FR 56(d) deals with the extension of service of a Government Servant, in general, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the All India Services. Therefore, in the present case, as Respondent No. 2 is an IPS officer and Member of the All India Services, the service conditions are more aptly governed by Rules, 1958 and the provisions of Rule 3 of Rules, 1960, as extracted hereinabove, would apply for relaxation of the provisions of Rule 16(1) of Rules, 1958. In view thereof, it would be irrelevant to deal with the issue of alleged violation of FR-56(d) once the Central Government has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960. Be that as it may, once we are satisfied that the power of relaxation has been exercised under Rule 3 of Rules, 1960 for a just cause and for extenuating circumstances, calling for exercise of the said power, we do not subscribe to the argument that there is a violation of FR-56(d). Insofar as the argument of the Petitioner/Intervener that post of Commissioner of Police, Delhi does not find mention in the Provisos to FR-56(d) and Rule 16(1) of Rules, 1958 and therefore his case does not fall in the exceptions, is concerned, suffice would it be to state that if the said post was covered under the Provisos and therefore the exceptions, the Provisos would have a self-operating effect. It is only because the case of Respondent No. 2 does not fall in the Provisos, the power of relaxation of the provisions of the substantive Rule 16(1) of Rules, 1958 has been exercised. We do not find any violation of Rule 16(1) of Rules, 1958 and/or FR-56(d) and the contention is hereby rejected.”
Quite forthrightly, the Bench then holds in para 82 that, “In view of the aforesaid finding by us that the directions of the Hon’ble Supreme Court rendered in Prakash Singh’s Case (I) and (II), do not apply to the appointment of Commissioner of Police, Delhi, we also reject the contention that the Central Government was required to send the case to UPSC for empanelment or that Respondent No. 2 was required to have a residuary service of six months, prior to his superannuation, at the time of his appointment as Commissioner of Police, Delhi. It bears repetition to state that the directions of the Hon’ble Supreme Court were only intended to apply with respect to the appointments of the DGPs in the respective States and thus there is no violation of the directions of the Hon’ble Supreme Court. Both the aforesaid decisions have all along been interpreted and understood as being applicable to the States, for appointment of Police Officers of the rank of DGP and above.”
As we see, the Bench then makes it clear in para 88 that, “We have examined the contentions of the Petitioner/Intervener with regard to violation of Rule 16(1) of Rules, 1958 and FR 56(d) and given a detailed finding that there is no violation of the said Rules, in view of the power of relaxation exercised by the Central Government. Therefore, even when examined on the anvil and touchstone of the parameters for issuing a writ of quo warranto, we do not find any violation of the statutory Rules and are thus not persuaded to issue a writ of quo warranto to quash the appointment of Respondent No. 2, as Commissioner of Police, Delhi, as prayed for by the Petitioner/Intervener.”
As it turned out, the Bench then categorically, cogently and convincingly pointed out in para 89 that, “Before we part with the judgment, we may add a note of caution to the Petitioner. Learned Solicitor General and Mr. Prashant Bhushan had strenuously argued that the pleadings in the present petition are a ‘cut, copy, paste’ of the petition filed by the Intervener before the Hon’ble Supreme Court and that such a practice must be discouraged and strictures be passed against the Petitioner. Learned counsel for the Petitioner had disputed and denied the allegation and asserted that the pleadings in the petition are his own creation. We do not wish to precipitate the issue any further but 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.”
Finally, the Bench then sagaciously holds in para 90 that, “For all the aforesaid reasons, the writ petition is dismissed along with the pending applications.”
In conclusion, we thus see that the Division Bench of Delhi High Court comprising of Chief Justice DN Patel and Justice Jyoti Singh after perusing the facts of the case and the relevant evidence presented before it listed the right, rational and robust reasons for dismissing the writ petition that was filed challenging the appointment of Rakesh Asthana as Delhi Police Commissioner. No valid reason was found for endorsing what was stated in the writ petition! Thus Rakesh Asthana’s appointment by Centre and the firm stand taken by Centre that as many as 8 erstwhile Police Commissioners have been appointed by the Central Government since 2006 prior to the appointment of Respondent No. 2 following the same procedure and they were not challenged in the past was found to be perfectly fit and proper and all the arguments that were forwarded by the petitioner just failed to cut any ice with the Division Bench of the Delhi High Court that was hearing this case as mentioned above and were found to be just not sustainable in law! Thus the petition was then finally dismissed. Very rightly so!