DGP appointment: SC dismisses Bengal plea
This is an abuse of the process... Your application was already rejected in 2019. Why are you wasting so much time in an application like this?
SUPREME COURT, To counsel for Bengal govt
NEW DELHI: The Supreme Court on Friday dismissed the West Bengal government’s plea to allow it to circumvent the Union Public Service Commission (UPSC) for appointing a new director general of police (DGP), terming the request an “abuse of the process”.
A bench headed by Justice L Nageswara Rao observed that the state government was “wasting so much of its time” in filing applications such as this and that states must refrain from flooding courts with such pleas.
“We can’t permit this (application). This is an abuse of the process. You are forcing us to say all this... Let us be very frank about this. Please, do not file applications repeatedly, especially since you are the state,” the bench, which also included Justices BR Gavai and BV Nagarathna, told senior counsel Sidharth Luthra, who was representing the Mamata Banerjeegovernment.
Luthra, on behalf of the state government, asserted the state’s right to appoint its DGP by modifying the court’s 2018 order in the Prakash Singh case on police reforms, which made it mandatory for the state governments to appoint the DGP from a panel of three most senior police officers forwarded to them by UPSC.
But the court pointed out that it had by an order in January 2019 rejected the same plea by various states, including West Bengal, and therefore, the current endeavour was a repeat of the previous application.
“Your application was already rejected in 2019. The points you are making in this application are exactly the same that you made then. Why are you wasting so much time in an application like this? This is improper,” the bench told Luthra.
The state’s lawyer, on his part, tried to persuade the bench that 2019 order had left open the points regarding authority of a state to appoint DGP in terms of their power of superintendence over police officials.
But the bench remained unimpressed. “What’s left open? The point you urged has already been rejected. There is nothing left open... Our pain is this. As it is we have individuals filing petitions which should not be filed. If states are also going to file petitions like this, it
will be a problem. When will we have the time to hear the important cases?” it asked Luthra.
At this, Luthra agreed not to press the application any further but requested the bench to allow the state to appear and argue in a public interest litigation initiated in 2013 at the instance of amicus curiae and senior advocate Harish Salve, challenging the validity of various laws passed by states allegedly to overcome the Supreme Court’s directions in the Prakash Singh case.
The bench accepted this request and said that the West Bengal government will be heard in that case.
Advocate Prashant Bhushan appeared for petitioner and former DGP of Uttar Pradesh and Assam, Prakash Singh. Bhushan complained that the court’s repeated directions in that case were not implemented by the states and the top court should take up this matter to monitor compliance.
“Due to the pandemic, this case has not been heard in the last two years. Unfortunately, most of the states haven’t compiled with the directions of this court,” submitted Bhushan.
Agreeing with Bhushan, the bench remarked: “You are right. This has to be heard. We are aware that despite directions passed in 2007, those have not been implemented. We will hear this case in October.”
Under the 2018 order, states need to send names of DGP candidates to UPSC, which picks three candidates from the eligible names based on seniority, experience, service record and other criteria.
The state government then selects any of the top three candidates, provided that the candidate has a minimum of six months of service left.
The developments come amid a stalemate over appointment of a new DGP in West Bengal, which named Manoj Malviya, the most senior officer in the Indian Police Service cadre in the state, as interim DGP on Tuesday.
On July 2, UPSC wrote to Bengal chief secretary HK Dwivedi seeking a list of eligible officers for the post. Roughly 10 days later, the West Bengal government prepared a list of 21 names for UPSC.
In its application filed before the top court while the appointment of the police chief remained in limbo, the West Bengal government emphasised that police and public order are subjects exclusively within the jurisdiction of the state and hence, UPSC had neither the jurisdiction nor the expertise to consider and appoint the DGP.
“Each state has, therefore, exclusive power to legislate in regard to its police system and also have full administrative control over the police in the state...the direct involvement of the UPSC in the appointment process of the DGP of a state would tantamount to curtailment of the legislative powers of a state,” stated the plea.
It added that the Constitution of India does not vest UPSC with the power to assess the respective merit of the officers holding the rank of DGP for determining the fitness since it is the state government which can have the proximate opportunity to assess the fitness of officers of that rank who had rendered service to the state in the state cadre.
The application also comes against the backdrop of a near complete breakdown in relations between the Centre and West Bengal.
The Bharatiya Janata Party, which heads the Union government and the Trinamool Congress fought a bitter battle in the assembly elections earlier this year.
The BJP hoped to wrest the state but it was the TMC which won by a landslide. Since then the BJP has accused the TMC of unleashing violence on the former’s supporters, something the latter has denied, but which is now being investigated under court supervision by two teams, including one from the Central Bureau of Investigation.
The TMC, meanwhile, has accused the BJP of being a sore loser and using central agencies such as CBI, and the Enforcement Directorate to target its leaders.
The West Bengal government highlighted that even the Supreme Court should not curtail the legislative powers of a state under the principles of judicial review or in exercise of the court’s extraordinary authority under Article 142 (power to issue orders for doing complete justice).
“The state government has the autonomy to select and appoint the DGP in the state without having to refer the names for empanelment to the UPSC, and to resultantly appoint the DGP from the panel prepared by the UPSC...the ultimate power to therefore exercise superintendence, extended to the selection of the DGP is therefore vested with the state government and cannot be taken away,” stated the application.
UNDER A 2018 ORDER, STATES NEED TO SEND NAMES OF DGP CANDIDATES TO UPSC, WHICH PICKS THREE ELIGIBLE NAMES BASED ON A GIVEN CRITERIA