The Supreme Court on Wednesday continued hearing the matter concerning the selection of the Director General of Police (DGP) of Odisha, with the Bench examining the exclusion of IPS officer Sushanta Kumar Nath, withdrawal of his integrity certificate and the subsequent creation of two temporary ex-cadre posts.
Advocate Prashant Bhushan submitted that the Odisha Government’s August 4 communication showed that the investigation into the police recruitment examination was continuing and that permission under Section 17A of the Prevention of Corruption Act had been sought in respect of officials of ITI Limited. According to Bhushan, the communication stated that Nath may be required to be examined after the ITI officials were examined.
Bhushan questioned the subsequent withdrawal of Nath’s integrity certificate and its use to exclude him from the DGP selection process. He also submitted that the State had sought postponement of the UPSC Empanelment Committee meeting scheduled for August 7, after which two temporary ex-cadre posts were created and two officers were promoted to DGP grade.
Bhushan argued that the original exercise sent to UPSC in May had already identified the eligible officers and that the subsequent developments effectively altered the zone of consideration. He also relied on the 2012 Government of India instructions concerning vigilance clearance, submitting that withholding such clearance was contemplated in circumstances including suspension, a pending chargesheet or disciplinary proceedings, or prosecution for criminal charges.
Senior Advocate Karuna Nundy, appearing for Sushanta Kumar Nath, submitted that Nath had completed 32 years of service and had consistently received outstanding assessments. She questioned the basis for withdrawing his integrity certificate, pointing out that the CBI communication relied upon by the State only stated that Nath “may be required to be examined” after examination of ITI Limited officials.
Nundy submitted that there was no chargesheet, suspension or pending disciplinary proceeding against Nath and argued that his integrity certificate could not have been withheld merely on the basis of the CBI communication. She also submitted that Nath was Chairman of the Odisha Police Recruitment Board in an ex-officio capacity and had taken steps after allegations concerning the recruitment examination came to light.
Senior Advocate Neeraj Kishan Kaul submitted that the issue was not merely about who should ultimately be appointed DGP, but whether the decision-making process had been altered to bring additional officers within the zone of consideration.
According to Kaul, the original list contained three officers in DGP grade along with officers at the lower level. After the UPSC meeting was postponed on August 7, two temporary ex-cadre posts were created, enabling two officers to be promoted to DGP grade. He argued that even if Nath’s exclusion were considered valid, the remaining eligible DGP-level officers could have been considered without introducing new officers into the process.
Senior Advocate Raju Ramachandran, appearing as amicus curiae, submitted that the eligibility list prepared on August 10, after the UPSC meeting had been postponed, should not replace the earlier list forwarded on May 14.
Ramachandran submitted that the two officers subsequently promoted through temporary ex-cadre posts were brought into the zone of consideration only after the original process had commenced. He argued that the circumstances surrounding the creation of the two posts required scrutiny and described the exercise as one that “reeks of arbitrariness.”
The Bench also examined the issue concerning the tenure of the incumbent woman DGP and the State rule relating to the minimum period an officer must have remaining before appointment as DGP. The Bench questioned whether a formula contained in the State rules could effectively treat a period of less than six months as satisfying the six-month requirement contemplated by the Supreme Court’s directions.
The Bench observed that the mere existence of a State rule would not by itself settle the issue and that the rule would have to conform to the Supreme Court’s directions in Prakash Singh.
The hearing will continue tomorrow.