Sadre Alam v. Union of India & Anr.

14. Mr. Bhushan has also assailed the appointment of Respondent No.2 on the ground that the action of Respondent No. 1 is in violation of the Guidelines provided in DoPT O.M. dated 08.11.2004, in as much as, having reached the Super Time Scale in his home Cadre, way back in 2002, Respondent No.2 was not eligible for Inter-Cadre deputation from Gujarat Cadre to AGMUT Cadre.

ARGUMENTS CANVASSED BY LEARNED SOLICITOR GENERAL OF INDIA ON BEHALF OF RESPONDENT NO.1/UNION OF INDIA

15. Mr. Tushar Mehta, learned Solicitor General of India, appearing on behalf of Respondent No.1/Union of India submitted that Respondent No.1 has neither violated provisions of FR-56(d) nor Rule 16(1) of Rules, 1958, as alleged by the Petitioner/Intervener and the power to relax the said Rules has been correctly exercised by invoking Rule 3 of Rules, 1960. The allegation that Guidelines stipulated in DoPT O.M. dated 08.11.2004 have been flouted is vehemently disputed and denied.

16. Learned Solicitor General strenuously contended that the plea of the Petitioner/Intervener that the appointment of Respondent No.2 is in violation of the judgment and directions of the Hon‟ble Supreme Court rendered in Prakash Singh’s Case (I), is completely misconceived and devoid of merits. Respondent No.1 has not violated any direction(s) of the Apex Court and in fact, the Petitioner and the Intervener are misreading and misinterpreting the observations and directions. It was submitted that the directions issued by the Apex Court in Prakash Singh’s Case (I) and (II) are applicable in respect of appointment of „DGP of a State‟/Chief of the Police Administration of the entire State and have no application for appointment to the post of Commissioner/Police Head of a Union Territory, falling under the AGMUT Cadre. Drawing the attention of the Court to para 31 of the judgment in Prakash Singh’s Case (I), it was argued that direction no.2 under the heading „Selection of Minimum Tenure of DGP‟ would not apply to Police Commissioner of a Commissionerate in general and Union Territories under AGMUT Cadre, in particular. The direction that the Director General of Police shall be selected by the State Government from amongst the three senior most officers of the Department empanelled for promotion to the said rank, by UPSC, was only in respect of a „State‟ and not any Union Territory.

17. It was further contended that pursuant to the directions of the Hon‟ble Supreme Court in Prakash Singh’s Case (I), UPSC framed Guidelines for appointment of DGPs of States, but no such Guidelines were framed for appointment of Police Commissioner/Head of Police Force in Union Territories, appointed from the AGMUT Cadre. From 2006 onwards, the Central Government, the State Governments and UPSC have understood and applied the directions issued in Prakash Singh’s Case only for appointment of DGP of State, which has a dedicated State Cadre and sufficient number of officers available in Pay-Level 16 Pool, for constitution of a panel, for appointment of DGP, which is a Pay-Level 17 Rank and pertinently, these Guidelines framed by the UPSC were also placed before the Hon‟ble Supreme Court.

18. It was argued that since the year 2006 and prior to the appointment of Respondent No.2, eight Police Commissioners have been appointed by the Central Government in Delhi, following the same procedure as has been followed in the instant case. There has never been any objection to the erstwhile appointments either by UPSC or the intervener organization and the selective objection to the appointment of Respondent No.2 herein raises serious concerns on the bonafides of the Petitioner/Intervener.

19. It was contended that in terms of the judgment in Prakash Singh’s Case (I), Head of Police Force in the State i.e. DGP Rank Officer attains Pay-Level 17 after selection, from the eligible DGP level Officers in Pay- Level 16 and ADG level officers, available in the cadre with 30 years of service and six months left for retirement. In the State Cadres, generally, sufficient number of officers are available for preparing the panel for appointment to the DGP level. However, the status of AGMUT Cadre is different from other State Cadres. In case of AGMUT Cadre, there are several segments and in all the segments respectively, Heads of Police Force are in different Pay-Levels. This is on account of the fact that in AGMUT Cadre, there never exists a situation where sufficient number of Pay-Level 16 DG Rank Officers are available in one segment, with thirty years of service and six months of residual service, for empanelment by UPSC, in accordance with the directions in Prakash Singh’s Case (I) and (II).

20. It was further contended that if the directions in Prakash Singh’s Case (I) were to apply in case of UTs / AGMUT Cadre then from one single segment, a total of 3 Pay-Level 16 IPS Officers would be required for empanelment by UPSC and the same shall be the requirement with respect to all the segments. Such a vast pool of Pay-Level 16 IPS Officers, for each segment is never available in the AGMUT Cadre and this is the reason why in all the segments, the Head of Police Force is made from different levels, as detailed in the tabular representation given in the counter affidavit. Drawing the attention of the Court to the table in para 20 of the Counter Affidavit, it was argued by Mr. Mehta that the highest level posts sanctioned in different segments of AGMUT Cadre are at different Pay-Levels. It is only in Delhi, which is the Capital of the Nation, that the highest sanctioned post of Commissioner of Police, Delhi is in Pay-Level 17, while for all other segments, the level of Police Head is below Pay-Level 17.

21. Learned Solicitor General articulated that for Delhi, which is the Capital of the country, there is a requirement of a robust Police Force of International repute and thus maximum number of sanctioned posts in ADG Rank and above are created in AGMUT Cadre to cater to the peculiar policing needs of the National Capital. Though Delhi has sufficient number of ADG (Pay-Level 15 IPS officers), which can be included in the zone of consideration, as per Prakash Singh’s Case (I), however, a panel of 3 IPS officers, from DGP rank in Pay-Level 16, cannot be prepared from the pool of officers available in Government of NCT of Delhi, as evinced by the Hon'ble Supreme Court in the context of appointment of DGP of a State. Learned Solicitor General further submitted that the highest sanctioned post is Commissioner of Police, Delhi, which is in Pay-Level 17. In the available pool, there is only one post of DGP (Pay-Level 16) in Delhi and remaining are 10 sanctioned posts of ADG (Pay-Level 15). Albeit, technically a Pay- Level 15 officer can be considered for empanelment, however, the same would be of no avail as in the presence of DGP Level officer in the segment, an officer of ADG level cannot head the Police Force in that segment. As a matter of practice, not only in Delhi but in the entire country, a Pay-Level 15 IPS officer, though he may be technically competent to be part of the zone of consideration, is not granted Pay-Level 17 directly from Pay-Level 15, as this would have demoralising and deleterious effect not only on the officers superseded but the entire Police Force and thus such a practice is discouraged.

22. It was contended by learned Solicitor General that the case of AGMUT Cadre and Delhi Commissionerate is a sui generis case, so far as the appointment of Commissioner of Police/Head of Police Force is concerned. Delhi being the Capital, has its own characteristic features, which do not exist in any other Commissionerate. Being the Capital of the country, any untoward incident occurring here, has far-reaching impact and implication, not only throughout the country but across the International borders. In a nutshell, the argument was that any statutory provision deserves to be read in a manner that a leeway and discretion is left to the Central Government for appointment of Police Commissioner, Delhi and any straitjacket or paediatric approach would not be in National interest. Reiterating the argument, Mr. Mehta submitted that keeping in view the peculiar structure of AGMUT Cadre, the directions issued in Prakash Singh’s Case (I) and (II) for appointment of DGP of a State, cannot be made applicable ipso facto for appointment of the Head of Police Force in relation to a Union Territory, particularly Government of NCT of Delhi and in fact a bare reading of the judgment reflects that the directions were not even intended to be implemented with respect to the Union Territories which have a common AGMUT Cadre. No action can be invalidated on the ground of non-performance of something, the performance of which is impossible.

23. Learned Solicitor General drew the attention of the Court to the position prevailing in the various segments of the AGMUT Cadre, to make a point that a pool of sufficient number of officers is not available at the appropriate level or rank and therefore it is not feasible to prepare a panel of three officers. As an illustration, it was shown that in Puducherry, highest sanctioned post is at IG level and as per UPSC Guidelines, IG level officers and DIG level officers with 18 years of service are eligible for inclusion in the zone of consideration for heading the Force. However, considering that only one IGP and one DIG post have been sanctioned, it is not feasible to prepare a panel of three officers. Moreover, in the presence of IGP level officer in the segment, an officer of DIG level cannot head the Police Force in that segment. It was highlighted that the aforesaid features distinguishing the case of Union Territories and AGMUT Cadre from a State, were before the Hon‟ble Supreme Court and also within the knowledge of UPSC and it is for this reason that neither the Hon‟ble Supreme Court nor the UPSC, which empanels the eligible IPS officers for appointment as DGPs of respective State(s), as per its Guidelines of 2009, have directed the Central Government or the Delhi Police Force to follow the process of empanelment by UPSC, in accordance with the directions in Prakash Singh’s Case (I) and (II).

24. Learned Solicitor General of India submitted that the appointment of Commissioner of Police, Delhi has all along been made as per the procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993. Section 6 of the Delhi Police Act, 1978 provides for appointment of Commissioner of Police and perusal of the provisions of Section 6 clearly reveals that the appointment is made by the Administrator (Hon‟ble Lieutenant Governor) in accordance with the procedure laid down under the Transaction of Business of GNCTD Rules,

1993. Under Rule 55(2) of the said Rules, subject to Instructions issued from time to time, by the Central Government, the Hon‟ble Lieutenant Governor is required to make a prior reference to the Central Government in the Ministry of Home Affairs or the appropriate Ministry, with respect to proposals for appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands). The said procedure has been followed all along and eight Commissioners, prior to the appointment of Respondent No.2 herein, have been appointed by the Ministry of Home Affairs, in accordance with this procedure, following the mandate of Delhi Police Act read with Transaction of Business of GNCTD Rules, 1993.

25. In so far as Inter-Cadre deputation of Respondent No.2 is concerned, learned Solicitor General submitted that there is no illegality in the action of Respondent No.1, as alleged, in as much as the Inter-Cadre deputation is in accordance with the provisions of DoPT O.M No.13017/16/2003-AIS (I) dated 28.06.2018 (Annexure R/2 to the counter affidavit filed by Respondent No.1). The said O.M clearly stipulates that all cases of Inter- Cadre deputation would be processed as per Guidelines stated therein and wherever relaxation of any of the provisions of the Guidelines are required, the case shall be put up to a Committee comprising of Secretary, DoPT, Establishment Officer & Additional Secretary and Additional Secretary (S&V), as Members. Home Secretary is to be co-opted as a Member in this Committee, while considering cases of IPS officers, for relaxation of any provision relating to Inter-Cadre deputation. In consonance with the said O.M, the matter is first placed before the Committee for recommendation relating to relaxation of the conditions laid down in the O.M dated 08.11.2004.

26. Elaborating the argument, learned Solicitor General contended that the Office Memorandums are nothing but practice/executive directions, issued by the Central Government to regulate the service conditions of its employees and are to be interpreted keeping in view the past practice. Exercising powers under Clause (a) of the DoPT OM dated 28.06.2018, Central Government has been granting Inter-Cadre deputation to officers who have attained Pay-Level 14, by following the procedure laid down under Clause (b) of the O.M. dated 28.06.2018 and the relaxation power of the Central Government has never been questioned in the past. To substantiate the argument, names of four officers were pointed out to the Court, as referred to in para 36 of the counter affidavit, in whose cases the power of relaxation was exercised for granting Inter-Cadre deputation. In the instant case, powers of relaxation have been invoked to relax Clause 2(i) of the DoPT O.M. dated 08.11.2004 and the action does not suffer from any illegality in the absence of lack of power of relaxation and nor can it be contended that there is any procedural irregularity, while passing the impugned order.

27. Reiterating the argument that Delhi being the Capital of the country, having a specific and special requirement, in view of the fact that it has witnessed several untoward and extremely challenging incidents/law and order problems/riots/crimes, which have International implications, it was emphasized that there was a dire need and necessity of appointment of an experienced officer, having diverse and multifarious experience of heading a Police Force in any large State/Central Investigating Agency / Para-military Security Forces etc. to head the Delhi Police Force. The Competent Authority, accordingly, in its considered decision, thought it appropriate and just, in public interest, to appoint Respondent No.2, who has vast experience and knowledge in the field, having headed a large Para-Military Force, so as to effectively negotiate and handle the peculiar policing needs and the law and order situation in the National Capital.

28. Learned Solicitor General next contended that both the Petitioner and the intervener are mis-reading and mis-interpreting FR-56(d) and Rule 16(1) of Rules, 1958, as though there is a complete bar in granting extension in service beyond the age of superannuation and are overlooking Rule 3 of Rules, 1960, under which the Central Government has the power to relax any Rule/Regulation, where the Central Government is satisfied that the operation of any Rule, made or deemed to have been made under the All India Services Act, 1951 or any Regulation made under any such Rule, causes “undue hardship” in any particular case. The „undue hardship‟ contemplated would include the hardship faced by the Central Government. In case of a hardship faced by the Central Government/Cadre Controlling Authority (hereinafter referred to as „CCA‟), in finding a suitable officer for a specific post, with special requirements, within a cadre, it can relax Rule 16(1) of the Rules, 1958 and grant extension of service to an officer, in exercise of powers conferred under Rule 3 of Rules, 1960 and Section 21 of the General Clauses Act, 1897.

29. In the present case, during the process of appointment of the Commissioner of Police, Delhi, the CCA was faced with precarious situation, where it was found that most of the appropriate level officers of AGMUT Cadre, were not having sufficient experience of policing in a vast law and order sensitive State/Central Investigating Agency/National Security/ Para-Military Force, for appointment of Commissioner of Police, Delhi, which being the Capital of the country, was experiencing a unique situation in terms of the impact of local incidences of crime and the law and order situation was adversely affecting the image of the Country. Considering the complexities and the sensitivities involved and also considering that no officer of appropriate seniority with balanced experience was available in the AGMUT Cadre, it was felt that an officer belonging to a large State Cadre, who had the exposure of complexities of governance and knowledge of nuances of broad canvas policing, is given the charge of Commissioner of Police, Delhi. Keeping the public interest objective in mind, the service tenure of Respondent No.2 was extended in exercise of the powers vested in the CCA. In the absence of lack of power, exercise of said power cannot be faulted, when the same is in accordance with law.

30. Learned Solicitor General articulated that power of the Government to extend the tenure of service of an officer working under the Central Government has been recently affirmed by the Hon'ble Supreme Court in judgment dated 08.09.2021, passed in Common Cause (A Registered Society) vs. Union of India & Ors., 2021 SCC OnLine 687. Additionally, Ministry of Home Affairs, being the CCA of IPS officers, in exercise of powers conferred under Rule 3 of Rules, 1960, relaxed Rule 16(1) of Rules, 1958 and extended the service tenure of the following officers:i. Shri Amulya Kumar Patnaik, IPS (AGMUT:1985) ii. Shri Shivanand Jha, IPS (GJ:1983) iii. Shri Sanjay Barve, IPS (MH:1987) iv. Shri Kuladhar Shaikia, IPS (AM:1985) v. Shri Munir Ahmad Khan, IPS (JK:1994) vi. Shri Sulkhan Singh, IPS (UP:1980) vii. Shri Suresh Arora, IPS (PB:1982) viii. Dr. S.B. Singh, IPS (AM:1986) ix. Shri K. Rajendra Kumar, IPS (JK:1984)

31. Learned Solicitor General also questioned the maintainability of the present petition and argued that a public interest litigation is not tenable in service matters. If any individual is personally aggrieved or affected by the appointment of Respondent No.2, as Commissioner of Police, Delhi, it is always open to that individual to challenge the appointment of Respondent No.2, however, present Petitioner cannot challenge the same by filing a writ petition in the nature of public interest litigation.

32. It was argued that the present petition is a verbatim reproduction of a petition filed earlier by the Intervener before the Hon‟ble Supreme Court and is a gross abuse of process of law, which cannot be lightly brushed aside. The fact that the petition is a „cut, copy, paste‟ of another petition not only reflects non-application of mind of the Petitioner but also creates serious doubts on the bonafides of the Petitioner. In so far as the Intervener is concerned, learned Solicitor General submits that the Intervener is not a public spirited organisation but is a mere busy body, which selectively files petitions for vested interests. There are serious concerns regarding the purpose and motive behind the present petition and the same should thus not be entertained, though camouflaged as a public interest litigation.

33. It was also urged by Mr. Mehta that Central Government has the power, jurisdiction and authority to grant Inter-Cadre deputation to officers by virtue of provisions of DoPT O.M. dated 08.11.2004, as well as to grant relaxation of the provisions of the said O.M., wherever required, under Clause (a) of DoPT O.M. dated 28.06.2018. Once the Central Government has the powers of relaxation, this Court cannot substitute the decision of the Government granting relaxation, in exercise of powers of judicial review. The decision to relax the provisions of DoPT O.M. dated 08.11.2004 and grant Inter-Cadre deputation to Respondent No. 2, is a well-considered decision based on special facts and circumstances obtaining in the AGMUT Cadre and the subjective satisfaction has been arrived at on objective considerations. This Court cannot sit as a Court of appeal over the subjective satisfaction arrived at by the Central Government for grant of Inter-Cadre deputation to Respondent No.2 or for extension of his service beyond superannuation as well as appointment as Commissioner of Police, Delhi.

34. It was vehemently argued that the present petition is an abuse of the process of law and manifestly an outcome of some personal vendetta against the incumbent Commissioner of Police entertained by the Petitioner as well as the Intervener and the petition deserves to be dismissed with exemplary costs.

35. Learned Solicitor General placed reliance upon the following judgments:a) Tehseen Poonawalla vs. Union of India, (2018) 6 SCC 72, b) Citizens For Justice and Peace vs. State of Gujarat & Ors.

c) Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo & Ors., (2014) 1 SCC 161. d) Arun Kumar Agrawal vs. Union of India & Ors., (2014) 2 SCC 609. e) Hari Bansh Lal vs. Shaodar Prasad Mahto & Ors., (2010) 9 SCC 655. f) Girjesh Shrivastava & Ors. vs. State of Madhya Pradesh & Ors., (2010) 10 SCC 707.

ARGUMENTS CANVASSED ON BEHALF OF RESPONDENT No.2- MR.

RAKESH ASTHANA

36. We have heard Mr. Mukul Rohatgi, learned Senior Counsel appearing on behalf of Respondent No.2 – Mr. Rakesh Asthana, who has at the outset contended that the writ petition is not a bonafide public interest litigation, but a flagrant abuse of the august Forum of this Court on account of a personal vengeance or a hidden vendetta, either of the Petitioner or the Intervener or someone, on whose behest attempts are being made to jeopardise the career of Respondent No. 2. It was also argued that the present petition is a proxy litigation on behalf of some undisclosed rival interest. Learned Senior Counsel placed reliance upon the decision of the Hon‟ble Supreme Court in R.R. Verma v. Union of India, (2010) 3 SCC 402, more particularly paragraph 181 thereof, to contend that Courts must ensure that there is no personal gain or private/oblique motive behind filing a petition in the nature of public interest litigation.

37. Mr. Mukul Rohatgi placed reliance upon Annexure CA-1 appended to the counter affidavit filed by Respondent No. 2, which are copies of the snapshots of the tweets posted by learned counsel for the Intervener, between 22.10.2017 to 28.07.2021, to buttress the point that not only is the present petition an abuse of process of law but also that there has been a sustained social media campaign against Respondent No. 2 in the past, which corroborates the apprehension of Respondent No. 2 that the challenge to his appointment is a result of either some personal vendetta or undisclosed rival interests. It was argued that there are two organizations, namely, Common Cause and Centre for Public Interest Litigation, who are professional public interest litigants and exist only for filing litigations. One or two individuals run both the organisations and enjoy deep and pervasive control over these organisations. Individuals running them in the recent past, for some oblique and ostensible undisclosed reasons, have started a barrage of selective actions against Respondent No.2, either out of some personal vendetta or at the behest of some other individuals. As a part of this selective campaign against Respondent No.2, proceedings are being consistently filed against him in Courts, by these two organisations and additionally outside the Courts, people in control of the said organisations spearhead a malicious campaign against Respondent No.2. This, it was argued, has been a regular feature, since Respondent No.2 was appointed as Special Director in the Central Bureau of Investigation. Mr. Rohatgi has drawn the attention of the Court to the counter affidavit, filed on behalf of Respondent No.2, wherein details of the petitions filed against Respondent No. 2, by the said organisations, have been enumerated.

38. Objection was taken to the maintainability of the writ petition also on the ground that no public interest litigation can be entertained in service matters, as held by the Hon‟ble Supreme Court in several judgements. It was also pointed out that no individual who may have been an aspirant to the post or personally aggrieved by the appointment, has approached the Court against the appointment of Respondent No. 2.

39. Without prejudice to the aforesaid arguments, Mr. Rohatgi learned Senior Counsel, on merits, adopted the arguments canvassed on behalf of Respondent No. 1. It was reiterated that the judgements of the Hon‟ble Supreme Court in Prakash Singh’s Case (I) and (II) are applicable for appointment to the post of „DGP of a State‟/Chief of Police Administration of the entire State and have no application with respect to appointment of Commissioners of a Commissionerate in General and Union Territories, falling under the AGMUT Cadre, in particular.

40. It was further submitted that Rule 3 of Rules, 1960 gives power to the Central Government to relax the requirements of Rules made under the All India Services Act, 1951 and the Regulations made under the said Rules, wherever it is satisfied that the operation of any Rule or Regulation, as the case may be, causes „undue hardship‟ in any particular case. Exercising the said power, provisions of Rule 16(1) of Rules, 1958 were relaxed by the Central Government, as evident from the stand of learned Solicitor General that during the process of appointment of the Commissioner of Police, Delhi, the CCA was faced with a precarious situation where most of the appropriate level officers of AGMUT Cadre were not having sufficient experience of Policing in a vast law and order sensitive State/Central Investigating Agency/National Security/Para-military Force, to enable the CCA to appoint the Commissioner of Police, Delhi, keeping in mind the complexities and sensitivities involved in the National Capital. Likewise, it was contended that there is no illegality in the Inter-Cadre deputation of Respondent No. 2 or the extension of service beyond the date of superannuation, as the same has been granted in exercise of powers of relaxation by the Central Government, invoking Rule 3 of Rules, 1960 and there is no dispute on the existence of such powers. Hence, it was submitted that the writ petition be dismissed and costs be imposed on the Petitioner.

ANALYSIS AND REASONS:

41. We have heard the learned counsel appearing for the Petitioner as well as counsel for the Intervener and learned Solicitor General appearing on behalf of Respondent No.1 as well as learned Senior Counsel appearing for Respondent No.2, at length.

42. From the aforesaid narrative of facts and the contentions raised by the respective parties, it emerges that Respondent No.2 is an IPS officer of 1984 Batch of Gujarat Cadre, with an experience of approximately 37 years in different posts. Respondent No. 2 has been found suitable by Respondent No.1, to be appointed as Commissioner of Police, Delhi, vide order dated 27.07.2021 (Annexure P-2 to the memo of this writ petition). By the same order, Respondent No.2 was brought on Inter-Cadre deputation from Gujarat Cadre to AGMUT Cadre and also granted extension of service initially for a period of one year, beyond the date of his superannuation or until further orders, whichever is earlier, in relaxation of Rule 16(1) of Rules, 1958, in public interest. It is this order which is assailed in the present petition, inter alia, on the following grounds:i) Violation of Guidelines issued by the Hon‟ble Supreme Court in Prakash Singh’s Case (I) and (II) ii) Violation of mandate of provisions of FR-56(d). iii) Central Government has no power under Rule 3 of Rules, 1960 to relax Rule 16(1) of Rules, 1958. iv) Violation of provisions of DoPT O.M. dated 08.11.2004, pertaining to Inter-Cadre deputation of officers belonging to the All India Services.

43. Learned counsel appearing for the Petitioner as well as learned counsel appearing for the intervener had emphasized and re-emphasized that the appointment of Respondent No. 2 as Commissioner of Police, Delhi is in violation of the principles culled out and the directions issued by the Hon‟ble Supreme Court in Prakash Singh’s Case (I) and (II), inasmuch as Respondent No. 2 was not empanelled by the UPSC, prior to his appointment and that Respondent No. 2 did not have a residual tenure of six months prior to the date of retirement, on the date of his appointment as Commissioner of Police. It was pointed out that Respondent No. 2 was to superannuate on 31.07.2021 and he was appointed as Commissioner of Police, Delhi on 27.07.2021 i.e. only 4 days prior to his date of superannuation.

44. In our view, the aforesaid contentions do not merit acceptance. Reading of the directions issued by the Hon‟ble Supreme Court, in the decisions rendered in Prakash Singh’s Case (I); order dated 03.07.2018 in I.A. 25307/2018 in W.P.(C) 310/1996 in Prakash Singh’s Case (I) and the directions in Prakash Singh’s Case (II), makes it clear that the directions given by the Hon‟ble Supreme Court and the principles culled out therein were in effect applicable for appointment to the post of „DGP of a State‟, to be selected by the State Government, from amongst the three senior most officers of the Department, who have been empanelled by UPSC for promotion to the said rank. The judgement and the directions therein, have no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre. Respondent No.2 has been appointed as Commissioner of Police, Delhi, which is a Union Territory, having a Legislative Assembly, in accordance with provisions of Article 239AA of the Constitution of India. The directions given by the Hon‟ble Supreme Court in paragraph 31 of Prakash Singh’s Case (I), make it explicitly clear that the Hon‟ble Supreme Court was considering the appointment of DGP of the State and not the Head of a Police Force for a Union Territory and therefore there was no occasion to pass directions applicable to appointment of a Head of Police Force in a Union Territory. The peculiar set up of Union Territories and the lack of pool of sufficient officers in the appropriate Pay-Level, with requisite experience, in the AGMUT cadre, as highlighted by learned Solicitor General and not disputed by the Petitioner and the Intervener, lead to an inevitable conclusion that application of the UPSC Guidelines, flowing from the directions of the Hon‟ble Supreme Court, to Union Territories will create an anomalous situation, which would be completely unworkable. For ready reference, paragraph 31 is extracted hereinunder:- “31. With the assistance of learned counsel for the parties, we have perused the various reports. In discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations: State Security Commission (1) The State Governments are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State Police and for laying down the broad policy guidelines so that the State Police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its exofficio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee, which are as under: NHRC Ribeiro Committee Sorabjee Committee

1. Chief Minister/HM as Chairman.

1. Minister i/c Police as Chairman.

1. Minister i/c Police (ex-officio Chairperson).

2. Lok Ayukta or, in his absence, a retired judge of High Court to be nominated by the Chief Justice or a Member of the State Human Rights Commission.

2. Leader of Opposition.

2. Leader of Opposition.

3. A sitting or retired judge nominated by the Chief Justice of the High Court.

3. Judge, sitting or retired, nominated by the Chief Justice of the High Court.

3. Chief Secretary.

4. Chief Secretary. 4. Chief Secretary. 4. DGP (ex-officio Secretary).

5. Leader of Opposition in the Lower House.

5. Three nonpolitical citizens of proven merit and integrity.

5. Five independent Members.

6. DGP as ex-officio Secretary. 6. DG Police as The recommendations of this Commission shall be binding on the State Government. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service-oriented functions of the police, evaluation of the performance of the State Police and preparing a report thereon for being placed before the State Legislature. Selection and minimum tenure of DGP (2) The Director General of Police of the State shall be selected by the State Government from amongst the three seniormost officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties. Minimum tenure of IG of police and other officers (3) Police officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge District and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer. Separation of investigation (4) The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full coordination between the two wings. The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also. Police Establishment Board (5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions/transfers/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State. Police Complaints Authority (6) There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district-level Authority may be headed by a retired District Judge while the State-level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State-level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district-level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilise the services of retired investigators from the CID, Intelligence, Vigilance or any other organisation. The State-level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district-level Complaints Authority would, apart from the above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State-levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the authority concerned. National Security Commission (7) The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate appointing authority, for selection and placement of Chiefs of the Central Police Organisations (CPOs), who should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilised for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of CPOs and a couple of security experts as members with the Union Home Secretary as its The aforesaid directions shall be complied with by the Central Government, State Governments or Union Territories, as the case may be, on or before 31-12-2006 so that the bodies aforenoted become operational on the onset of the new year. The Cabinet Secretary, Government of India and the Chief Secretaries of State Governments/Union Territories are directed to file affidavits of compliance by 3-1-2007.” (emphasis supplied)

45. Perusal of the aforesaid observations and directions of the Hon‟ble Supreme Court in Prakash Singh’s Case (I) indicates that direction No.2 under the heading “Selection and Minimum Tenure of DGP” are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police, Delhi, as was sought to be urged by learned counsels for the Petitioner and the Intervener. This is further fortified by a holistic reading of the observations in sub-para (2) of para 31 of the judgement, wherein it was directed that the State Government shall select the DGP from amongst the three seniormost officers of the Department, empanelled for promotion by UPSC, based on their length of service, very good record and range of experience for heading the Police Force. This Court is unable to discern any observation of the Hon‟ble Supreme Court which even remotely indicates or suggests that the directions were issued in the context of Police Heads of Union Territories, falling under the AGMUT Cadre.

46. As per the directions given by the Hon‟ble Supreme Court in Prakash Singh’s Case (I), DGP rank officer, who after selection, attains Pay-Level 17, is to be selected from the eligible DG level officers in Pay-Level 16 and ADG level officers, available in the State Cadre, with 30 years of service and 6 months residual service, prior to the date of their superannuation. We have no reason or material on record to disbelieve or reject the stand of Respondent No. 1 that in the State Cadres, sufficient number of officers are available to constitute a zone of consideration, for the purpose of preparing a panel for appointment as DGP (Pay-Level 17), which is not the case in the AGMUT Cadre. Neither the Petitioner nor the Intervener have placed any material enabling this Court to come to a contrary conclusion. Moreover, as brought out on behalf of Respondent No. 1, status of AGMUT Cadre is completely different from the other State Cadres.

AGMUT Cadre comprises of several segments and in each of these segments, Head of Police Forces are in different Pay-Levels. This is on account of the fact that in AGMUT Cadre, as explained by the learned Solicitor General, there can never be a position where sufficient number of Pay-Level 16 - DG Rank officers would be available in one segment, with 30 years of service and 6 months residuary service, prior to their superannuation, for empanelment by UPSC, in accordance with the directions in Prakash Singh’s Case (I). The fact that Heads of respective Police Forces are in different Pay-Levels is reflected from a tabular representation given by Respondent No. 1 in the counter affidavit, which is extracted hereunder, for ready reference:-

┌───────────────────────────────────────────────────────────────────────────────────┐
│       Sl. Name     of                  Total stationed strength                   │
│       No. State/UT                                                                │
│                           Leve of Police DGP        ADGP IG         DIG      SP   │
│                           Head                                                    │
├───────────────────────────────────────────────────────────────────────────────────┤
│       1.    Government    CP (level-17) 02          10                            │
│             of NCT of                                                             │
│             Delhi                                                                 │
│       2.    Arunachal     DG(Level-16)     01       0                             │
│             Pradesh                                                               │
│       3.    Mizoram       DG(Level-16)     01       01                            │
│       4.    Goa           DG(Level-15)     0        01       01                   │
│       5.    DNH&DD        DIG-13-A         0        0               01       03   │
│       6.    Chandigarh    DG(Level-14)     0        0        01     01            │
│       7.    A&NI          DG(Level-15)     0        01       01                   │
│       8.    Lakshdweep    SP(Sr. Scale)    0        0        0      0        01   │
│       9.    Puducherry    DG(Level-14)     0        0        01     01            │
│        * In addition 4 temporary posts at DGP (Level-16) level have been          │
│        created.                                                                   │
└───────────────────────────────────────────────────────────────────────────────────┘

30. Reliance placed by Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant on a decision of this Court in Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC 404: 1956 Cri LJ 794], in our opinion, is not apposite. This Court therein was considering interpretation of the word “especially” contained in Section 106 of the Evidence Act, 1872, which was an exception to Section 101 thereof vis-à-vis Sections 112 and 113 of the Railways Act. It is in that context this Court observed: (AIR p. 406, para 13)

31. If the first part of the statement of law in Shambhu Nath [AIR 1956 SC 404: 1956 Cri LJ 794] in our opinion, is applicable, the illustration in question does not curtail nor extend the ambit. It merely clarifies what otherwise might have been obvious. It introduces the rule by abundant caution although it might not have been necessary keeping in view the purport and object which Rule 20 and Para 3.[8] seeks to achieve.

32. The clarification issued by the State is not in the teeth of the illustration given in Clause (g) of Para 3.[4] of the office memorandum. The clarification having been issued, the same should be taken into consideration by this Court irrespective of the fact as to whether it was available to the Public Service Commission on 16-3-2004 when the DPC held its meeting which, in our opinion, was not of much significance.

33. The clarification being explanatory and/or clarificatory, in our opinion, will have a retrospective effect.

34. In S.S. Grewal v. State of Punjab [1993 Supp (3) SCC 234: 1993 SCC (L&S) 1098: (1993) 25 ATC 579] this Court stated the law thus: (SCC pp. 240-41, para 9)

35. Yet again in CIT v. Podar Cement (P) Ltd. [(1997) 5 SCC 482] this Court referring to a large number of authorities including that of G.P. Singh's Principles of Statutory Interpretation, observed: (SCC p. 506, para 51)

36. This Court in Allied Motors (P) Ltd. v. CIT [(1997) 3 SCC 472] observed: (SCC pp. 479-80, para 13) “13. Therefore, in the well-known words of Judge Learned Hand, one cannot make a fortress out of the dictionary; and should remember that statutes have some purpose and object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning. In R.B. Jodha Mal Kuthiala v. CIT [(1971) 3 SCC 369] this Court said that one should apply the rule of reasonable interpretation. A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole.” (See also Zile Singh v. State of Haryana [(2004) 8 SCC 1].) (emphasis supplied)" (e) In N. Suresh Nathan v. Union of India, 1992 Supp (1) SCC 584, the Hon‟ble Supreme Court held as under:- “4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents diploma holders that the practice followed in the department for a long time was that in the case of diploma-holder Junior Engineers who obtained the degree during service, the period of three years' service in the grade for eligibility for promotion as degree-holders commenced from the date of obtaining the degree and the earlier period of service as diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined.

5. The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, degree-holders and diploma-holders with three years' professional experience. In other words, a degree is equated to diploma with three years' professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein — one is of degreeholder Junior Engineers with three years' service in the grade and the other is of diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50 per cent from each category. This matches with Rule 7 wherein a degree is equated with diploma with three years' professional experience. In the first category meant for degree holders, it is also provided that if degree-holders with three years' service in the grade are not available in sufficient number, then diplomaholders with six years' service in the grade may be considered in the category of degree-holders also for the 50 per cent vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for degree-holders according to Rule 11 as the qualification for promotion in that category must mean three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a diploma-holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years' service as a degree-holder. The only question before us is of the construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of the appellants degree holders that the rules must be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department.”

65. Learned Solicitor General highlighted that Respondent No.2 was appointed as Commissioner of Police, Delhi as per the procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993. For ready reference, Section 6 of the Delhi Police Act, 1978 is reproduced hereunder:- “6. Commissioner of Police.—For the direction and supervision of the police force in Delhi, the Administrator shall appoint a Commissioner of Police who shall exercise and perform such powers and duties and perform such functions as are specified by or under this Act.”

66. The procedure required to be followed for the said appointment by the Hon‟ble Lieutenant Governor is laid down under the Transaction of Business of GNCTD Rules, 1993, relevant portion of which is reproduced hereunder:- “55(2) Subject to any instructions which may from time to time be issued by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters:- (a) proposals affecting the relations of the Central Government with any State Government, the Supreme Court of India or any other High Court; (b) proposals for the appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands);

(c) important cases which affect or are likely to affect the peace and tranquility of the National Capital Territory; and

(d) cases which affect or are likely to affect the interests of any minority community, Scheduled Castes or the backward classes.” [Emphasis Supplied]

67. 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.

68. 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.

69. The second contention raised by learned counsel for the Petitioner as well as learned counsel for the Intervener was that there is violation of provisions of the DoPT O.M. dated 08.11.2004 regarding the Inter-Cadre deputation of Respondent No.2 made vide impugned order dated 27.07.2021. In order to examine the said contention, it would be relevant to refer to the impugned order, which is reproduced hereunder:-

2. In pursuance of the said approval, Shri Rakesh Asthana, IPS (GJ:1984) is hereby appointed as Commissioner of Police, Delhi with effect from the date of taking over charge up to 31.07.2022 or until further orders, whichever is earlier. -Sd- (B.G. Krishna) Deputy Secretary (S) Tele: 23094790”

70. The contention, succinctly put, was that Respondent No. 2 was not eligible for Inter-Cadre deputation, in terms of the provisions of DoPT O.M. dated 08.11.2004, as he had reached the Super Time Scale in 2002 and Inter- Cadre deputation is permissible only before reaching the Super Time Scale in the Home Cadre. Per contra, the stand of Respondent No. 1 was that by virtue of a recent DoPT O.M. dated 28.06.2018, the provisions of the DoPT O.M. dated 08.11.2004 can be relaxed, as and when required, by a Committee, constituted as per Clause (a) of the DoPT O.M. dated 28.06.2018.

71. We have carefully perused the DoPT O.Ms. dated 08.11.2004 and 28.06.2018 respectively and examined the rival contentions. For ready reference, DoPT O.M. dated 28.06.2018 is reproduced hereunder: “No. 13017/16/2003-AIS.I Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training North Block, New Delhi Dated: 28th June, 2018 Office Memorandum Sub: Inter-Cadre deputation of All India Service Officers — policy regarding. The undersigned is directed to refer to this Department‟s OM of even number dated 8.11.2004 on the subject mentioned above and to convey that the Competent Authority has approved the following:- (a) all cases of inter-cadre deputation would be processed as per existing guidelines and wherever relaxation of any of the provisions of these guidelines are required, the case will be put up to a Committee comprising of Secretary (DoPT), Establishment Officer & Additional Secretary and Additional Secretary (S&V) as Member. (b) in order to have a uniform pattern for consideration of such cases for all the three All India Service Officers, the Committee, as mentioned at para (a) above, should consider all cases of inter-cadre deputation of all AIS officers (IPS and IFoS included). Home Secretary is to be co-opted as a Member in this Committee while considering cases of IPS officers and Environment Secretary is to be co-opted as a Member while considering the cases of Indian Forest Service officers. The Committee should consider all cases of inter cadre deputation and give its recommendations on the need and justification of inter-State deputation.

(c) Inter cadre deputation will be available to the officers only after completion of nine years of service in his or her cadre and before reaching pay at Level 14 of the Pay Matrix in his or her home cadre.

2. The provisions of DOPT‟s O.M. No. 13017/16/2003-AIS- 1 dated the 8th November 2004 regarding inter cadre deputation of All India Service officers will stand modified to the above extent.

3. The Ministry of Home Affairs and the Ministry of Environment, Forests & Climate Change are requested to consider all such requests for inter cadre deputation keeping in view incorporation of the aforesaid provisions in the extant policy and proposals shall thereafter continue to be processed and submitted for consideration and orders of the Appointments Committee of the Cabinet after obtaining approval of the Minister-in-charge. Sd/- (Udai Bhan Singh) Under Secretary to the Government of India Tel: 011-23094142”

72. Reading of paragraph 2 of the aforesaid O.M. indicates that by way of the said O.M., the earlier OM dated 08.11.2014 has been partially modified. Provisions of Clause (a) of O.M. dated 28.06.2018 grant power of relaxation of any of the provisions of the Guidelines stipulated in O.M. dated 08.11.2004. It is stipulated that all cases of Inter-Cadre deputation would be processed as per existing Guidelines and wherever relaxation of the Guidelines are required, the case will be put up to a Committee comprising of the following:a) Secretary (DoPT), b) Establishment Officer & Additional Secretary, and c) Additional Secretary (S&V), as Member Additionally, Home Secretary shall be co-opted as a Member while considering cases of IPS officers.

73. Clause (b) of the aforesaid O.M. dated 28.06.2018 provides for consideration of cases of officers of the All India Services for Inter-Cadre deputation, by the Committee, in order to have a uniform pattern of consideration. Clause (c) provides that the Inter-Cadre deputation will be available to officers after completion of 9 years of service in the Cadre and before reaching Pay-Level 14 in the Home Cadre.

74. The argument of the Petitioner/Intervener overlooks the provisions of Clause (a) by virtue of which relaxation can be granted to any of the provisions of DoPT O.M. dated 08.11.2004, with regard to Inter-Cadre deputation. Thus, there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of Clause (b) of the DoPT O.M. dated 28.06.2018 and Clause 2(i) of DoPT O.M. dated 08.11.2004. The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent No. 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action. We may also note the categorical stand of Respondent No.1, set out in para 36 of the counter affidavit, wherein it is stated, by way of illustration, that four officers in the past, above Pay-Level 14, have been granted Inter-Cadre deputation, exercising the power of relaxation. The names of the officers as enumerated therein are as follows: Sr. No. Name of the Officer Date of Central Government‟s Order

1. Sh. Thianghlima Pachuau, IPS [MT:87] 26th March, 2014

2. Sh. T. John Longkumar, IPS [CG:1991] 21st June, 2018

3. Sh. Nitishwar Kumar, IAS [UP:1996] 5th September, 2020

4. Sh. Vivek Bhardwaj, IAS [WB:1990] 13th August, 2021

75. 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.

76. Much was argued out by learned counsels for the Petitioner/Intervener that Respondent No. 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958, while granting extension of service to Respondent No. 2, beyond the age of superannuation. Learned counsels relied on the provision of FR-56(d) which prescribes that “no Government Servant shall be granted extension in service beyond the age of retirement of 60 years” as well as Rule 16(1) of Rules, 1958 and submitted that the Rules mandate a complete bar in extension of service beyond superannuation and the Central Government does not have the power under Rule 3 of Rules, 1960 to relax either Rule 16(1) of Rules, 1958 or provisions of FR-56(d).

77. The aforesaid contention raised by the counsels for Petitioner/Intervener is not accepted by this Court. For ready reference, FR- 56(d) is reproduced hereunder:- “Fundamental Rule 56(d) No Government servant shall be granted extension in service beyond the age of retirement of sixty years:…”

78. For ready reference, Rule 16(1) of Rules, 1958 is reproduced hereunder:- “16. Superannuation gratuity or pension.- 16(1) A member of the Service shall retire from the service with effect from the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a member of the Service whose date of birth is the first day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years: Provided further that a member of the Service dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period may be given extension of service for a period not exceeding three months in public interest, with the prior approval of the Central Government. Provided also that a Member of the Service holding the post of Chief Secretary to a State Government may be given extension of service for a period not exceeding six months on the recommendations made by the concerned State Government with full justification and in public interest, with the prior approval of the Central Government. Provided also that a Member of the Service holding the post of Chief Secretary to the Government of Jammu & Kashmir may be given extension of service, under exceptional circumstances, for a period beyond six months but the total term as Chief Secretary not exceeding three years and up to the age of sixty-two years, whichever is earlier, on the recommendations made by the State Government of Jammu & Kashmir, with full justification and in public interest, with the prior approval of the Central Government". Provided also that a member of the Service who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on the expiry of his extended period of service or on the expiry of any further extension, granted by the Central Government in public interest, and that no such extension in service shall be granted beyond the age of sixty years.”

79. 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

(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.”

80. 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.

81. 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.

82. 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.

83. There can hardly be a dispute on the proposition of law sought to be urged by learned Solicitor General and learned Senior Counsel for Respondent No. 2 that public interest litigation cannot be entertained in a service matter. The law on this aspect is no longer res integra and we may only refer to the observations of the Hon‟ble Supreme Court in Vishal Ashok Thorat and Others vs. Rajesh Shrirambapu Fate and Others, 2019 SCC OnLine SC 886, as follows:- “18. In support of the appeal filed by the State of Maharashtra, learned senior counsel submits that respondent No. 1 had no locus to file a writ petition, he having not participated. It is submitted that provisos to Rule 3(iii) and Rule 3(iv) of Rules, 2016 do not at all lower minimum qualification prescribed by Central Government vide notification dated 12.06.1989, but it merely gives breathing period of two years (before completion of probation period) to selected candidates to gain experience of one year and driving licence. It is submitted that direction in paragraph 51 of the judgment cannot be complied as on date, in view of fact that notification of the Central Government dated 12.06.1989, is no longer in operation. Rules, 2016 do not change the minimum qualification which is same as provided in substantive provision of Rule 3 and proviso carves out only an exception giving some time to acquire the qualification during the probation period by which provision the zone of consideration has been enlarged enabling the more meritorious candidates to apply for the post. The High Court committed error in treating the writ petition filed by the respondent as Public Interest Litigation whereas in the service matters no Public Interest Litigation can be entertained.

38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No. 1 was held by the High Court not competent to challenge the advertisement Nos. 2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No. 1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No. 1 to challenge the advertisement Nos. 2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No. 1. The High Court in the facts of the present case, where respondent No. 1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No. 1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, this Court has reiterated that PIL should not be entertained in service matter. In paragraph 15 following has been laid down: “13. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273: AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State of Maharashtra, (2005) 1 SCC 590: AIR 2005 SC 540; and Neetu v. State of Punjab, (2007) 10 SCC 614: AIR 2007 SC 758)””

84. Similarly, in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (2014) 1 SCC 161, the Hon'ble Supreme Court observed as under:- “14.1. In relation to a service matter a public interest litigation is not maintainable except as far as it relates to a writ of quo warranto and in the case at hand, the High Court has failed to understand the implications of the writ of quo warranto and has not only entertained the PIL in the garb of a writ of quo warranto but further proceeded to direct recovery of the amount paid to the Chairman of the Commission while functioning as a CEO which is beyond the scope of a PIL.”

85. However, we may only add a caveat that the only exception to the above proposition is a writ in the nature of quo warranto. It is a well-settled law that a writ of quo warranto lies for violation of statutory provisions. In this regard, we may refer to the observations of the Hon‟ble Supreme Court in Hari Bansh Lal vs. Sahodar Prasad Mahto and Ors., (2010) 9 SCC 655 2010, as follows: “20. From the discussion and analysis, the following principles emerge: (a) Except for a writ of quo warranto, PIL is not maintainable in service matters. (b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

(c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules.”

86. We may also refer to a passage of the judgment of Hon‟ble Supreme Court in Rajesh Awasthi v. Nand Lal Jaiswal and Ors. 2013 (1) SCC 501, which is as follows: “19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana [(2002) 6 SCC 269] held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy [(2006) 11 SCC 731 (2): (2007) 1 SCC (L&S) 548 (2)], this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal [(2010) 9 SCC 655: (2010) 2 SCC (L&S) 771] wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.”

87. This Court in S.N. Sahu v. Chairman, Rajya Sabha & Ors. being W.P.(C) No. 11146/2016, decided on 05.12.2016 held as follows: “5. It is a settled law that a writ of quo warranto can be sought only if there is found to be violation of a statutory provision. This is so held by the Supreme Court in its various judgments and two such judgments are in the cases of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others, (2006) 11 SCC 731(2) and Rajesh Awasthi Vs. Nand Lal Jaiswal & Others (2013) 1 SCC

501. The relevant paragraphs of the judgment of the Supreme Court in the case of B. Srinivasa Reddy (supra) are paras 49, 57 and 60 which hold that a writ of quo warranto can only be filed if there is found to be violation of a statutory provision.

7. It is therefore clear that the present writ petition seeking reliefs in the nature of quo warranto is not maintainable because there is no pleading in the writ petition as to which statutory provision is violated in the appointments of Shri Ramacharyulu and Shri Mukul Pande. Prayer (a) therefore is misconceived and the writ petition is liable to be and is accordingly dismissed so far as prayer (a) is concerned”.

88. 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.

89. 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.

90. For all the aforesaid reasons, the writ petition is dismissed along with the pending applications.

CHIEF JUSTICE JYOTI SINGH, J OCTOBER 12, 2021/„anb‟