KATHMANDU, Nov 6: Can a government remove a serving Inspector General of Police (IGP) before the end of his legally prescribed tenure simply by transferring him to another position? And can such a move leave two officials effectively holding the rank and authority of police chief within the same organization?
These are among the key legal questions raised by former IGP Dan Bahadur Karki in a writ petition filed at the Supreme Court (SC) on Thursday, challenging the government's decision to remove him from police leadership and transfer him to the position of security adviser to the prime minister.
Karki has argued that the Cabinet's decision has created an unusual situation in which two officials hold positions at the level of IGP—one at the Office of the Prime Minister and Council of Ministers and the other at Nepal Police Headquarters. Such an arrangement, he maintains, has created confusion in the police hierarchy and chain of command.
“The disputed decision has created two officials at the level of Inspector General of Police, placing one outside the police organization at the Office of the Prime Minister and Council of Ministers and the other at the Police Headquarters,” his petition states.
The Cabinet, at its November 4 meeting, promoted Additional Inspector General Dr. Manoj Kumar KC to the post of IGP. Karki has challenged the appointment, seeking its annulment and his reinstatement.
At the heart of his legal challenge is the argument that the government cannot effectively remove a police chief from office by transferring him to another position without following the legal process. He has cited SC precedents, particularly the case involving former IGP Achyut Krishna Kharel, to argue that removal from one position and appointment to another are legally distinct actions.
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The Kharel case established that an official cannot be indirectly removed from a position under the pretext of appointing them to another post, according to the petition.
Karki has also questioned the legal basis for his transfer outside the police organization. He argues that neither the Police Act, 1955, nor the Nepal Police Regulations, 2014, contains provisions allowing an incumbent IGP to be transferred to a position created at the Office of the Prime Minister and Council of Ministers.
Another central argument concerns his four-year tenure. Citing Rule 127 of the Nepal Police Regulations, 2014, Karki maintains that an officer appointed to a position with a legally prescribed tenure has the right to serve for the stipulated period unless removed in accordance with the law.
He has also referred to the Supreme Court's ruling in the case involving Hitendra Dev Shakya, which upheld the principle that an official appointed for a fixed tenure is entitled to serve for that period under prevailing laws.
Karki has questioned the government's justification for the decision, saying the Cabinet resolution does not identify any shortcomings in his performance or conduct. Instead, it cites the broad objective of strengthening peace and security under the prevailing circumstances.
“If the experience of the incumbent Inspector General of Police was necessary to strengthen peace and security, there is no logical basis for removing that very experienced officer from the leadership of Nepal Police,” the petition states, describing the decision as lacking objective grounds and being based on irrelevant considerations and mala fide intentions.
He has further argued that even if the government had concerns about his performance or conduct, it was required to specify the allegations, seek his explanation and provide him an opportunity to defend himself. By failing to do so, the government violated his right to a fair hearing, a fundamental principle of natural justice, according to the petition.
The November 4 letter from the Ministry of Home Affairs, which stated that Karki would receive remuneration and enjoy service conditions equivalent to those of the IGP, has also come under scrutiny. Karki argues that this arrangement does not change the substance of the government's action: he has effectively been removed from the position before completing his tenure.
The government could seek to defend its decision by invoking Section 9(2) of the Police Act, 1955, which provides that police personnel remain in service at the government's pleasure. However, Karki has cited the Supreme Court's interpretation of the provision in the Kharel case, arguing that the government's discretion cannot be exercised arbitrarily.
He has also referred to the case of Rajesh Rajkarnikar v. Office of the Council of Ministers and Others (NKP 2061, Decision No. 7423), in which the Supreme Court clarified that the principle of serving at the government's pleasure does not grant the government unlimited authority to act as it wishes.
The Kharel case offers another significant parallel. In that instance, the then government appointed incumbent IGP Achyut Krishna Kharel as chief of the National Investigation Department and promoted an Additional Inspector General to the IGP position on the same day. The Supreme Court's special bench, in its July 3, 1998 verdict, held that the position of IGP was not one subject to political appointment, according to Karki's petition.
The petition also emphasizes that the IGP is not merely an administrative position that can be reshuffled at the government's convenience. Under Rule 7 of the Nepal Police Regulations, the IGP is the chief of Nepal Police, responsible for administering the organization in accordance with the law and the ministry's direction and control.
Karki argues that the appointment and tenure of the police chief are governed by legal provisions that also regulate the conditions under which the position can be terminated. Rule 41, he says, requires appointments to be based on seniority, competence, efficiency, leadership capacity and the ability to mobilize subordinate personnel.
The broader concern raised in the petition is whether the government's authority over police leadership can override the legal safeguards designed to protect institutional continuity and professional independence.
For Karki, the issue goes beyond his individual reinstatement. He argues that allowing political discretion to determine the tenure of the police chief could weaken the institutional hierarchy, undermine professional impartiality and adversely affect the country's peace and security. The SC's response to these arguments will determine whether the government's decision withstands judicial scrutiny.
