2012, a non-governmental organisation (NGO), Voices for Freedom, had challenged Saini's appointment to the DGP's post on March 14, 2012.
The petitioner had claimed that in the 1994-95 Ludhiana 'abduction and killing' of three persons, the special Central Bureau of Investigation (CBI) court had in 2006 chargesheeted Saini and other accused under sections 364 (kidnapping or abducting in order to murder), 120-B (criminal conspiracy), 341 (wrongful restraint) and 342 (wrongful confinement) of the Indian Penal Code (IPC), adding that the trial was still pending in the court.
On October 16, 2012, discarding the NGO as a petitioner in the public interest litigation on the ground that the NGO did not have the locus standi (legal right to be heard), the high court had taken suo motu notice of the issue to pursue it further, stating that "the issue is of substantial importance".
Arguing for Saini on Monday, advocate Rupinder Singh Khosla said, "The chargesheet in the case was filed in 2006 and the revision petition is pending further trial. Delay in trial cannot be used to jeopardise the DGP's promotion, who had been fighting terrorism throughout and has an exceptional career record."
The court now has to decide on the following important issues in the case:
Case governed by SC judgment?
Before concluding his arguments on Monday, Punjab advocate general Ashok Aggarwal argued, "The DGP's appointment should be tested on the Prakash Singh judgment (issued by Supreme Court on September 22, 2006). Had we not come out with the Act (Punjab Police Act, 2007), we will be governed by the same as some other states are following the judgment."
Aggarwal said the judgment says that the DGP can be removed after his conviction in a court of law in a criminal offence or in a case of corruption, but in the present case, the case was still pending trial (Prakash Singh is a former director general of the Border Security Force).
However, amicus curiae (friend of the court) and senior Supreme Court advocate KN Balgopal said, "The Punjab government says the Prakash Singh judgment is applicable in Saini's case. Whereas they have not followed the judgment in totality." He added, "The judgment says that the DGP is to be selected from among three senior-most officers of the department, but Saini was at serial number six in seniority."
Punjab fails to answer amicus' arguments?
Arguing the case vehemently, Balgopal said, "They (state government) have not answered my questions." He further questioned, "I ask them, did they follow the sealed cover procedure in Saini's case for promotion, as per the circular issued by them (issued on February 27, 1998), as he had been chargesheeted. Can they overrule their circular?"
The amicus curiae also stated, "Not a single DGP in India had been appointed with a criminal record. When Saini was considered for the post, there were five serving officers senior to him and all must have served during terrorism, not anyone has a criminal record."
Appointment/transfer as per Punjab Police Act?
The advocate general said taking broad guidance from the Prakash Singh judgment, the state government had come out with the Punjab Police Act, 2007, which says that the DGP "shall" have tenure of not less than two years, unless he attains the age of superannuation, provided that the state government "may" transfer the DGP before the completion of his tenure, if he is convicted by a court of law in a criminal case or where charges have been framed against him by a court in a case involving corruption or moral turpitude." He added, "The court should treat the word may as may and shall as shall, depending on the context."
He said the appointment and transfer of the DGP was the government's discretion as the Supreme Court had not guided the state.
Countering his arguments, chief justice Arjan Kumar Sikri, speaking for the bench, questioned, "But even when a DGP is convicted, is it your discretion to transfer him? Will 'shall and may' also apply there?"
On this, Aggarwal answered, "There is no challenge to vires of the Act giving discretion to the legislature."
Appointment despite state's prosecution sanction?
Balgopal argued, "When the same state government had given Saini's prosecution sanction earlier, then how can they support his case for promotion till the post of DGP? It is like making an army officer who had faced court martial the army chief."