Thread by @LawBeatInd

#DelhiHighCourt to hear plea challenging the appointment of Rakesh Asthana as Commissioner of Police, Delhi.

#RakeshAsthana

In the previous hearing the Court adjourned the hearing after Counsel for the Petitioner on Court's enquiry sought time to answer as to what does the term "Supertime scale" means in Service Jurisprudence.

lawbeat.in/news-updates/p…

Matter begins

Adv Manohar Lal Sharma appears on screen- Is this Asthana Matter?

Bench- Counsel please start the matter

#RakeshAsthana #DelhiHighCourt

Adv BS Bagga begins his submissions.

Bagga- Im relying on Prakash Singh Judgement. The Union says it is not applicable. The counter affidavit filed by UOI however mentions an extract of Prakash Singh judgement.

#RakeshAsthana #DelhiHighCourt

Bagga- This judgement will apply as it is a Union Territory.

Bagga relies on Para 26 of the same judgement.

#RakeshAsthana #DelhiHighCourt

Bagga reads Rule 16 (1 ) relating to age of retirement.

Bagga- The union says this rule is relaxed but when it doesn’t even apply to DGP how is it relaxed for DGP.

#RakeshAsthana #DelhiHighCourt

Bagga- They are saying relaxation but are reading rule 3 which is bad in law.

#RakeshAsthana #DelhiHighCourt

Bagga- They says that service matters are not maintainable under a writ but this is a writ of quo warranto and the 5 Judge bench of Supreme Court in Universty of Mysore vs Govinda Rao has said that writ of quo warranto is maintainable in service matters.

#RakeshAsthana

Any judgement you are relying upon?

Bagga- Prakash Singh

Bench- Any other judgement? We are not going to rely on university of mysore judgement.

Bagga- I am not relying on that judgement for the time being

#RakeshAsthana #DelhiHighCourt

Bagga- 4 days before retirement this post is given which is bad in law... Im relying on Prakash Singh Judgement.

Bench- Anybody else wants to argue?

#RakeshAsthana #DelhiHighCourt

Adv Prashant Bhushan- Page 2 of UOI counter affidavit is quite intriguing. They say that the petition is a verbatim of my petition in supreme court.

#RakeshAsthana #DelhiHighCourt

Bhushan- The original petition even had my name and CPIL name which was later corrected. Though the deponent prays for dismissing the petition as mala fide but the benefit shoudl not ho to CPIL which has filed a petition in the Supreme Court.

#RakeshAsthana

Bhushan-It is so because if this petition is dismissed my petition in Supreme Court will be heard.
This is quite intriguing!

#RakeshAsthana #DelhiHighCourt

Bhushan referring to Prakash Singh Case. They say that Prakash Singh will not apply to Union Territory. In the 2006 Prakash Singh judgement the Court had contemplated the Union Territories.

#RakeshAsthana #DelhiHighCourt

Bhushan-Prakash Singh 2 judgement says that you cannot appoint anybody on the verge of retirement, he has to have a minimim of 6 months left for retirement.

Moreover the 3 names had to come from UPSC but the UPSC was not even consulted in this case

#RakeshAsthana

Bhushan- These directions are for all UT’s and state Police Chiefs and the Police Commissioner of Delhi is the state police chief and hence the Judgement applies to this case.

#RakeshAsthana #DelhiHighCourt

Bhushan- The High Powered committee had also rejected the name of Asthana as the CBI chief relying on the Prakash Singh case.

#RakeshAsthana #DelhiHighCourt

Bhushan- They have violated Prakash Singh by not involving UPSC and not getting the 3 senior most names selected by UPSC

Secondly They have appointed him for 1 year however the judgement says he has to be appointed for a minimum of 2 years.

#RakeshAsthana #DelhiHighCourt

Both his inter cadre transfer and appointment for 1 year is hit by Rule 3.

#RakeshAsthana #DelhiHighCourt

Bhushan- We have referred 3 judgement. First is Syed Khalid Rizvi vs UOI.
They says there were no competent officers in AGMUT cadre for commissioner of Police. They say all over India only Asthana was competent so there was no requirement for consulting the committee.

Bhushan- If this was said by UPSC there would be no objection. But saying that there was nobody all over India competent for the post of Commissioner of Police is astounding.

#RakeshAsthana

Bhushan- This can be done only when there is an undue hardship faced by the Government.

Extension of tenure can be granted in limited categories and that is also subject to the ground that they are already holding a post. This does not apply to Police Chiefs

#RakeshAsthana

Bhushan- They granted extension for a new post which is in violation of the law in Prakash Singh Judgement.

It also violates Rule 2 which provides for inter cadre deputation.

#RakeshAthana

Bhushan- Inter cadre deputation is applicable only after completion of 9 years service but he is in highest level of service where there is no question of inter cadre deputation.

#RakeshAsthana

Bhushan-They say earlier also they have appointed police officers in violation of Prakash Singh. But this does not give them the license to continue to flout the rules.

Bhushan concludes.

Adv ML Sharma requests to intervene. Court rejects his prayer.

#RakeshAsthana

SGI Tushar Mehta- Mr Bhushan has made a self complimentary statement based on my affidavit. Just because I have opposed the main petition that does not give him benefits to abuse the law.

#RakeshAsthana

Mehta- Secondly he is distributing copies to the media and the petitioner copied the petition for “cheap publicity”

#RakeshAsthana

Mehta reads UOI affidavit.

Mehta- 8 appointments have been made before Asthana but same public spirited persons chose not to file petitions.

#RakeshAsthana

Mehta- Petitioners may have some personal vendetta against Asthana but PIL is not the correct way.

#RakeshAsthana

Mehta- Now PIL is an industry, its a career for some.
PIL is not maintainable in service matters because the proposition is very clear.

If some officers felt that they were good, nothing prevented them from espousing their cause here.

#RakeshAsthana

Mehta- The decision making process of appointing officers may not be subject to judicial review of the court.

#RakeshAsthana

Mehta- After the judgement in Prakash Singh 1 the UPSC issued guidelines and these guidelines are being followed from 2007 till date and these guidelines were placed before the UPSC.
This is understood to apply to only state governments. Delhi is a UT.

#RakeshAsthana

Mehta- Delhi is a part of a common cadre AGMUT. There is no state cadre for Delhi. There is no sanction for a cadre of 3 in Delhi. It is impossible to have a cadre of 3 in Delhi

#RakeshAsthana.

Mehta- AGMUT Cadre is different from state cadre.
Here the question of subjectivity will come for the Central government to select the best competent officer for the post.

#RakeshAsthana

Mehta- In case of any deviation by states in following Prakash Singh, UPSC has objected but in case of UT 8 officers have been appointed which have not been objected by the UPSC.

#RakeshAsthana

Mehta-It is only with respect to #RakeshAsthana that the so called public spirit of these two petitioners arose.

Mehta- In case of inter cadre deputation,Mr Bhushan has argued that an officer who is below pay level 14 can only be eligible for inter cadre deputation and since #RakeshAsthana is above pay level 14 he is ineligible

Mehta-If we read in isolation any officer above 14 pay scale is ineligible. But there is an office memorandum which has been approved by the competent authority.

#RakeshAsthana

Mehta- This OM is not under challenge and cannot be a subject of challenge under a PIL.

#RakeshAsthana

Mehta- My learned friend has read the rule in a trauncated fashion, hardship cannot be retirement age of an officer, hardship has to be mentioned by the Central government.

#RakeshAshthana

Mehta- The very fact that the very same procedure is followed 8 times after Prakash Singh which was never challenged by either of the petitioners which says a lot about the interest of the petitioners.

#RakeshAsthana

Mehta- I will submit judgements on Doctrine of contemporanea exposito which says if a judgement is continued for a long time it becomes a law.

No interference in service matters in PIL.

Limited scope of judicial review when there is undisputed power givenby non affected parties

Court rises for lunch.

Matter to be heard at 2.15

#RakeshAsthana

Bench re-assembles

Mukul Rohatgi- The PIL filed by Mr Alam is not a genuine PIL apart from the fact that PIL cannot be filed in service matters. The PIL is a proxy for somebody who does not want #RakeshAsthana to be the DCP.

Rohatgi appears for Asthana.

Rohatgi- Apart from the Petitioner being an advocate there is no interest in filing the present petition.

#RakeshAsthana

Rohatgi refers to Bhushan’s application.

Apart from being an advocate there is no credentials of the petitioner in filing this petition. There is no gravitu and urgency for this petition neither it is in public interest.

#RakeshAsthana

Rohatgi- What is the harm that will be caused. He has 40 yrs experience. This is obvious there is some personal gain.

Rohatgi refers to UOI affidavit.

Rohatgi-Common Cause and CPIL are controlled by few individuals and Bhushan is one of them. There is some personal vandetta against Asthana .

Mr Bhushan had tweeted against Asthana when he was the special Director of CBI.

#RakeshAsthana

Rohatgi refers to Bhushan’s tweet against Supreme Court which had rejected plea against Asthana’s appointment as special Director CBI.

Look at the way he has addressed the Prime Minister.
In 2019 there was a tweet again.

#RakeshAsthana

Rohatgi- Nether the petitioner nor the interventionist is entitled to be heard by this court because of their mala fide petition and no social media campaign can be run against government functionaries.

#RakeshAsthana

Rohatgi- Delhi is not a state, it is a UT and there are special provisions. Only a full fledged state appoints a DGP and delhi has only a commissionerate. The provisions does not apply to a UT.

#RakeshAsthana

Rohatgi- From Gujarat he join this cadre called AGMUT. Mr Bhushan says that extension can be granted only in case of hardship but hardship here does not indicate hardship of an individual but hardship of the situation.

#RakeshAsthana

Rohatgi-The hardship of the situation was that there was no competent officer.
Every rule cannot be rigid. There is a power of exceptional circumstances which is called play in the joints to require flexibility.

#RakeshAsthana

Rohatgi-The appointment of DGP Punjab was challenged in Punjab and Haryana Court by a peer which is pending order.
Here nobody has challenged it because the power of appointment and inter cadre transfer was available. Hence why should the court entertain this kind of petition.

Rohatgi concludes.

Bagga- The allegation of copy paste has been time and again made but the Supreme Court has asked the Court to hear my petition.

Order- Judgement reserved.

#RakeshAsthana #DelhiHighCourt