Plea challenging Asthana’s appointment as Delhi Police chief filed in Supreme Court, Delhi High Court informed

The Delhi High Court was informed on Tuesday that a petition challenging the appointment of Gujarat-cadre IPS officer Rakesh Asthana as Delhi Police Commissioner has also been filed before the Supreme Court.

The submission was made in response to the High Court’s August 18 query on whether any other plea concerning Asthana’s appointment is pending before any court.

The query was raised while hearing a petition by an advocate challenging Asthana’s appointment as Delhi Police Commissioner and extension of his service by one year.

At the outset, advocate Prashant Bhushan informed a bench of Chief Justice D N Patel and Justice Jyoti Singh that he has filed a petition on behalf of NGO Centre for Public Interest Litigation (CPIL) before the Supreme Court on August 10 challenging Asthana’s appointment and it is likely to come up for hearing on Wednesday.

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“It is informed to this court that on very same appointment under challenge, already a writ petition has been preferred before the Supreme Court and the said matter is coming up for further hearing…,” the bench said while dictating the order.

To this, Additional Solicitor General Chetan Sharma, representing the Centre, said the plea has not yet been heard by the Supreme Court and it will be the first hearing on Wednesday.

“It is not before the court, it is before the registry. There is a marked distinction between the two,” he said, adding that they have not been served with the copy of the petition.

The Central government standing counsel Amit Mahajan said they are not aware of such a litigation.

The bench asked Bhushan to give a copy of the petition to the Centre’s counsel and listed the petition filed before it by Sadre Alam, a practising advocate, for hearing on September 24.

The bench said it had raised the query if any such petition concerning Asthana’s appointment was pending in any other court as it was in its mind that some matter was there. “There cannot be two orders in a similar matter. What if there are contradictory orders or observations,” it said.

The 1984-batch IPS officer, serving as the director general of Border Security Force, was appointed the Delhi Police Commissioner on July 27, four days before his superannuation on July 31.

In his petition before the high court, Alam has sought quashing of the July 27 order issued by the Ministry of Home Affairs appointing Asthana as the Delhi Police Commissioner and also the order granting inter-cadre deputation and extension of service to him.

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Advocate B S Bagga, representing Alam, has argued that Asthana's appointment was in violation of the existing service law.

“Four days before retirement he was appointed to the post,” he has stated as he claimed that the service conditions mandate a minimum residual tenure of six months.

ASG Sharma had contended that this petitioner has no locus standi to challenge Asthana's appointment.

The plea also sought initiation of steps for appointing the Delhi Police Commissioner strictly in accordance with the direction issued by the Supreme Court earlier. “The impugned orders (of MHA) are in clear and blatant breach of the directions passed by the Supreme Court of India in Prakash Singh case as (i) respondent no.2 (Asthana) did not have a minimum residual tenure of six months; (ii) no UPSC panel was formed for appointment of Delhi Police Commissioner; and (iii) the criteria of having a minimum tenure of two years has been ignored,” the plea said.

It claimed the High-Powered Committee comprising the Chief Justice of India, Prime Minister and the Leader of Opposition, in its meeting held on May 24, 2021, rejected the Central government's attempt to appoint Asthana as the CBI Director on the basis of the “six-month rule” as laid down by the Supreme Court in Prakash Singh.

The appointment of Asthana to the post of Commissioner of Police, Delhi must be set aside on the same principle, it said.

The petition with similar prayers which has been filed by CPIL before the Supreme Court has urged to direct the central government to produce the July 27 order it issued, approving the inter-cadre deputation of Asthana from Gujarat cadre to AGMUT cadre.

The petition has also urged the apex court to set aside the Centre's order to extend Asthana's service period.

A contempt plea in the apex court by advocate M L Sharma has been filed against Prime Minister Narendra Modi and Home Minister Amit Shah for appointing Asthana as Delhi Police Commissioner in alleged violation of the judgement in Prakash Singh case.

In his petition, Sharma has said that according to the apex court's judgement of July 3, 2018, the process of appointment should begin three months prior to the vacancy and the person being appointed must have a reasonable period of service left.