The Supreme Court on Monday restrained all states from appointing the Director General of Police (DGP) in an acting capacity, observing that such a concept is not perceptible on any analysis of its 2006 judgment in Prakash Singh’s case.
The bench headed by Chief Justice Dipak Misra required that endeavour be made by all concerned to ensure that the person so selected and appointed shall continue to hold the post despite his superannuation.
“The practice of allowing the appointee to continue for an additional 2 years post the superannuation only at the last stage should be reasonably avoided”, the bench, also comprising Justices D. Y. Chandrachud and A. M. Khanwilkar, directed.
However, it was clarified that the said direction may not be construed to mean that the UPSC may empanel, for the purpose of selection as the DGP, only those officers who have a clear 2 years of service remaining.
Continuing, the bench obligated all states to send their proposals in anticipation of the vacancy to the UPSC well in time, that is, 3 months prior to the retirement of the incumbent, whereupon, the UPSC shall prepare the panel of the three seniormost officers of the Department based on their length of service, very good record and range of experience for heading the police force, as stipulated by the Prakash Singh judgment.
Finally, The panel so prepared shall be intimated to the state, which shall then immediately select and appoint one of the persons empanelled.
The Bench also directed that any legislations/rules that may have been framed by the states which affect the 2006 judgment shall remain in abeyance, granting liberty to any state having an issue with these directions to approach the apex court in an application for amendment.
The hearing on Monday commenced with AG K. K. Venugopal submitting, “the practice being adopted by several states is that, first, an acting DGP is appointed. Then, as he is about to retire, he is appointed as the regular DGP, and he thereby gets 2 years extra on account of the Prakash Singh judgment...”
“The incumbent must retire at the age of 60...”, the CJI noted.
At this point, Advocate Prashant Bhushan drew the attention of the bench to Direction (2) issued in the Prakash Singh judgment, providing that once an officer has been selected for the job of the DGP, he should have a minimum tenure of at least two years irrespective of his date of superannuation.
“Many states are appointing an acting DGP, instead of following the 2006 judgment, where the UPSC shorlists 3 most suitable persons, of which the government appoints one...the purpose is to see if the person so appointed is complying with the orders of the state government or not...”, continued Mr. Bhushan.
“We have stayed the GSR 68E [dated January 28, 2014, issued by the DoPT to amend the IPS (Cadre) Rules of 1954] which made the minimum tenure of 2 years subject to the date of superannuation...that was wrong...now they are only saying that they will appoint one who has atleast 2 more years in service...”, interjected Justice Chandrachud.
“The judgment is being complied with...”, concurred the CJI.
“If you eliminate those who have less than 2 years of service remaining will reduce the range of the officers...”, persisted Mr. Bhushan.
“Quality of service is covered by Direction (2)...To grant an extra two years to an officer was not the purpose of the judgment...”, states Chief Justice Misra.
“The empanelment happens only of those who have more than two years to go...”, contributed Advocate Gopal Sankaranarayanan, appearing on behalf of BJP leader Ashwini Upadhyay on an intervention application.
“If officers with less than two years of service left are overlooked, What will happen is that while the junior becomes the DGP, the senior will retire as the IG...the same direction (as to fixed tenure regardless of superannuation) is being followed in respect of the CBI Chief...”, pressed Mr. Bhushan.
“The CBI has only one post, while the DGPs have to be appointed in every state...however, two years cannot be the condition precedent for the empanelment...all those who are qualified have to be empanelled...”, conceded CJ Misra.
Thereupon, the AG raised the second objection- “the direction requires the UPSC to make the selection...however, only 5 states (being the states of Tamil Nadu, Andhra Pradesh, Telangana, Karnataka and Rajasthan) are going to the UPSC...24 states are not complying with the judgment”
The bench noted the submission of Mr. Bhushan that the approach of the states in appointing an Acting DGP, who is made permanent shortly before the date of superannuation, so as to continue till the age of 62 years is erroneous.
Mr.Gopal Sankaranarayanan, for the Ashwini Upadhyaya submitted that the Union Public Service Commission should act as per the directions of this Court and it is the duty of the Union Public Service Commission and the States to see that the candidates who come within the zone of consideration have two years to go so that there will be a fair competition
In respect of state Acts in the teeth of the 2006 judgment, an advocate argued, “16 states have passed legislations which are under challenge before this court...they have to be examined...”
He indicated the order dated August 29, 2014, wherein it was observed- “There was a broad consensus regarding that course of action. It was also suggested by Mr. (Harish) Salve (Amicus Curiae) that constitutional validity of the (Bihar Police Act of 2007) could be first examined with liberty to learned counsel for the other States to intervene and make their submissions. We see no reason to decline that suggestion”
Thereafter, a subsequent order of November 3, 2014, whereby the apex court had transferred to itself two writ petitions challenging the Bihar Act pending before the Patna High Court.
When the bench inquired if there was any provision of the Act of 2007 that ran counter to the judgment, Mr. Sankaranarayanan mentioned its section 6 dealing with the selection and tenure of the DGP.
In so far as the bench on Tuesday had ordered that such state legislations be kept in abeyance, the AG contended, “In T. S. R. Subramanian (2013; wherein the Apex Court had directed that minimum tenure of service be prescribed for civil servants) as well as in Prakash Singh, it was said that the directions shall be operative until a legislation is enacted...once the Act is passed, it will supersede the judgment...Prakash Singh says that it would not impede the legislative process...”.
Read the Order