The apex court was hearing a plea by the state government which has sought modification of the top court's order mandating that an acting police chief cannot be appointed and a regular DGP has to be appointed in consultation with the UPSC.
During the hearing today, Jammu and Kashmir government told the court that the appointment of acting DGP was an interim measure and the decision was taken in the wake of peculiar circumstances and the law and order situation.
Attorney General K K Venugopal, who was present in the courtroom, said the prohibition of appointing an acting DGP was introduced to prevent misuse of the two-year fixed tenure given in an earlier verdict of the apex court.
He claimed that several states were making appointments of DGPs on acting basis and confirming them on the eve of superannuation.
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 the UPSC was initiated within 12 hours of transfer of the DGP Vaid.
He said it is gross misconduct as the acting DGP appointed by the government was number five in seniority and earlier suspended in a recruitment scam.
Alam said the appointment of acting DGP was 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.
To avoid favouritism and nepotism, the apex court had on July 3 directed all states and Union Territories not to appoint any police officer as acting DGP and issued a slew of directions on police reforms.
The top court's direction had come on an application filed by the Centre in which it had 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.
The apex court, while deciding the PIL filed by two former DGPs Prakash Singh and N K Singh ion 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.
On September 7, the Jammu and Kashmir government had moved the apex court and sought modification of the July 3 order by which it was made mandatory for all states to send the list of three senior-most IPS officers to the UPSC for clearances before appointing a police officer as DGP.
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 envisage 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.
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