The Federal Impact: Centre pulls up Soren govt for retaining DGP beyond retirement age

Defying a directive from the Union Ministry of Home Affairs (MHA), Jharkhand’s Hemant Soren government has retained Anurag Gupta as the state’s Director General of Police (DGP).

This move has set the stage for a possible showdown in the Supreme Court, which is set to hear the matter on May 6.

The Federal on April 18 reported that since Gupta would turn 60 on April 26, per government rules, he ought to retire from service on the afternoon of April 30. However, due to a Jharkhand government notification, he will continue serving as the DGP till July 2026.

The notification allows him a two-year fixed tenure from July 26, 2024, when he was appointed as DGP.

Violation of SC directions

The Jharkhand government did not involve the Union Public Service Commission (UPSC) while seeking the names of three eligible officers to appoint as the DGP. This was a violation of the directions given by the Supreme Court in the Prakash Singh case.

The Federal had also noted that the power to extend the service of an All India Services (which included IPS to which Gupta belongs) officer rests with the Union government.

Four days after The Federal report, on April 22, the MHA’s Police-1 division, which deals with the matters of the Indian Police Service (IPS), wrote to the Soren government, directing it to superannuate Gupta on April 30.

MHA's letter

The MHA letter to the state Chief Secretary said: “Extension in service beyond superannuation is granted only by the central government or a two-year tenure, irrespective of the superannuation, is given to the DGP (HoPF) of the state, appointed through the procedure laid down by the Hon'ble Supreme Court in Prakash Singh case. However, in the present case, the central government (Ministry of Home Affairs) has not granted the extension of service to Shri Anurag Gupta, IPS, who is due to superannuate on April 30, 2025.”

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The MHA letter added that if Gupta continues to remain in service after April 30, it shall be a violation of Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules of 1958, and hence his continuation in the post is not “legitimate”.

The Jharkhand government is now writing back to the MHA, providing its reasons for continuing with Gupta as the DGP.

BJP leader challenges appointment

Gupta’s appointment as the DGP with a fixed tenure of two years was challenged by BJP leader Babulal Marandi in the Supreme Court. He termed it as a contempt of the apex court's directions in the Prakash Singh case.

Marandi also challenged Gupta’s appointment in the Jharkhand High Court, arguing that the extension given to him in service was illegal. "We will bring everything to the notice of the Supreme Court on May 6," he told The Federal.

The SC will take up his contempt petition on May 6, while the Jharkhand High Court has listed the matter for hearing on June 16.

Apex court's directions

To insulate the police from political pressure, the Supreme Court, on a petition filed by retired IPS officer Prakash Singh, in 2006, said the states will appoint their police chiefs from among the three senior-most police officers, whose names will be part of a panel of three officers prepared by the UPSC.

The UPSC was asked to form a panel of three officers based on their length of service, good record, and experience to consider them for the top police job in the state.

The court also stated that once the officer was selected for the job, he or she should have a minimum tenure of at least two years, irrespective of his date of superannuation. But in Gupta’s case, the Jharkhand government didn’t follow the norms mandated by the SC.

State govt forms its norms

Instead, the state government went ahead and notified its own set of norms for the appointment of the DGP, which said a committee headed by a former high court judge and consisting of five other members - chief secretary and principal secretary (home) of Jharkhand government; a former DGP of Jharkhand and members nominated by the UPSC and the Jharkhand Public Service Commission, should suggest three to five officers eligible to be appointed as DGP of the state.

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The state government would then pick one of the officers for the post and appoint him or her for a tenure of two years. The notification of the norms laid down by the Jharkhand government also violated the SC directions, as the court had said all states should not make new norms, and if they made them already, they will remain in abeyance.

Who has the right?

“The issue of the appointment of DGPs of states has become very contentious. Around half a dozen states are facing contempt of court proceedings for not following the SC norms while appointing DGPs. The time is ripe for the top court to clear the situation forever now,” a senior IPS officer, who spoke on the condition of anonymity, told The Federal.

On January 16, 2019, while hearing the Prakash Singh case, there were arguments to decide on who holds the power to appoint the state police chief – the Centre or the state government.

The then Attorney General KK Venugopal argued that as per Entry 70 List I of the Constitution All India Services are in the “exclusive jurisdiction” of the central government and, therefore, the appointment of the DGP by state authorities does not carry legal validity.

Composite committee

But Venugopal also added that in deference to the federal structure under the Constitution, the Union government had suggested that a composite committee consisting of representatives of the Union and the state government concerned should decide the matter, indicating that the selection process should be routed through the UPSC.

A battery of senior lawyers which included P Chidambaram (for Punjab), Ranjit Kumar (for Bihar) and Anand Grover (for West Bengal) pointed out provisions contained in Entry 2 of List II of the Constitution to contend that police being an exclusive state subject, the choice of DGP should be left to the state.

However, the court didn’t weigh in on the matter at that time, stating that this issue would require more consideration.