The Supreme Court Tuesday refused to interfere with the Jammu and Kashmir government's appointing an acting director general of police (DGP) without following the process specified in an earlier order.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud issued notice to the Centre and sought its reply.
The state government on September 6 appointed Dilbagh Singh as acting police chief, replacing S P Vaid who was posted as transport commissioner, without following the procedure in view of "complex security concerns".
On September 7 it moved the apex court and sought modification in an earlier order which made it mandatory for all states to send the list of three senior most IPS officers to the UPSC for clearance before appointing the DGP.
During the hearing today, Attorney General K K Venugopal, who appeared for the Centre, said the prohibition to appoint an acting DGP was introduced to prevent misuse of the two-year fixed tenure given in an earlier verdict of the apex court.
He said that several states were making appointments of DGPs on acting basis and confirming them on the eve of superannuation.
The top court's earlier direction had come on an application filed by the Centre in which it claimed that certain states have been appointing acting DGPs and then making them permanent just before the date of their superannuation to enable them get the benefit of an additional two-year tenure till the age of 62 years.
Advocate Shoeb Alam, appearing for Jammu and Kashmir, said the appointment of an acting DGP was purely an interim measure to tide over the peculiar situation till a regular appointment was made in consultation with UPSC.
"We cannot afford the police force to be without a chief," he said, citing the law and order situation in Jammu and Kashmir.
Alam said the process of consultation with UPSC was initiated within 12 hours of transfer of the DGP Vaid.
Advocate Prashant Bhushan, appearing for the petitioner Prakash Singh said that the DGP cannot be removed without consultation with state security commissioner.
He said the acting DGP appointed by the government was earlier suspended in a recruitment scam.
Alam said that the appointment of Acting DGP is merely an in-charge appointment and the UPSC has been consulted in the matter.
"We will select from the panel cleared by the UPSC," Alam said.
The bench posted the matter for further hearing next week.
The court had considered the submission of the state government that in view of the upcoming panchayat polls and security situations incumbent Vaid has been replaced by in-charge Singh.
The state government was seeking modification of the July 3 order by which a state government is required to send the names of three senior IPS officer well in advance to the Union Public Service Commission (UPSC) for clearance before appointing an officer to the post of DGP.
The apex court had earlier passed a slew of directions on police reforms in the country and had restrained all states and union territories from appointing any police officer as acting DGPs to avoid favouritism and nepotism.
It had said that all states were required to send their proposals in anticipation of the vacancies to the UPSC well in time, at least three months prior to the date of retirement of the incumbent on the post of DGP.
The UPSC will then prepare a panel as per the earlier directions of the court and intimate to the states about the selected IPS officers, it had said.
The state, in turn, will immediately appoint one of the persons as DGP, it had said.
The state government, in its plea, said: "It may be pointed out that in view of the complex security concerns of the state, the peculiar ground situation prevailing therein, the upcoming panchayat and local body elections, insurgent and terror related activities, the unique law and order requirements, it is essential to have a head of the police force in the State of Jammu and Kashmir at all times.
"As such, as a purely ad-interim measure, the State Government has been constrained to appoint the Director General, Prisons of State of Jammu and Kashmir, Dilbagh Singh... as the In-Charge Director General of Police 'till a regular arrangement is made.'"
The apex court guidelines, which envisaged the role of the UPSC prior to the appointment of the DGP in a state, could not be followed as the "present case is not that of an 'anticipated vacancy' which would have enabled the state to forward a panel to the UPSC and comply with the other rigors of the applicable procedure," it said.
The apex court, while deciding the PIL filed by two former DGPs Prakash Singh and N K Singh in 2006, had issued several directions, including that state police chiefs will have a fixed tenure of two years.
It had also directed setting up of a state security commission, to ensure that the government does not exercise unwarranted influence on the police.
It had said the appointment of DGPs and police officers should be merit-based and transparent and officers like DGPs and Superintendents of Police (SPs) should have a minimum fixed tenure of two years.
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