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Cooperative federalism

It has been iterated that officers would be posted on Central deputation only in consultation with the States but also been made clear that “once the number of officers to come on deputation to the Centre is fixed after mutual consultation, the Central Government should have overriding powers to get those officers”

DEVENDER SINGH ASWAL | New Delhi |

The florid phrase ‘Minimum government and maximum governance’ is obviously not having the desired impact in terms of a need for senior officers by the Union government.

The move of the government to make changes in the Indian Administrative Service (Cadre) Rules, 1954, aims to avail the services of IAS officers on deputation with the Union government from the respective state cadres. However, there is an avalanche of opposition from many states, so much so that there is a forewarning of launching a people’s movement by a state like West Bengal.

The Chief Ministers of West Bengal, Chhattisgarh, Rajasthan, Jharkhand, Tamil Nadu and Kerala have written to the Prime Minister strongly opposing the proposed changes. Many other States, including Maharashtra, view the move as an erosion of India’s federal structure. The states, especially those not ruled by the National Democratic Alliance, are apprehensive that the proposed changes would confer overarching powers to the Union Government in the posting of IAS officers. This may be followed by similar changes in the service rules of other All India Services (AIS) such as the Indian Police Service and the Indian Forest Service.

Under the extant Rule 6 (1) of the IAS Cadre Rules, 1954, “A cadre officer may, with the concurrence of the State Government concerned and the Central Government, be deputed for service under the Central Government or another State Government or ~ body ~ wholly or substantially owned or controlled by the Central Government or by another State Government.” But the proviso to the rule says, “Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government concerned shall give effect to the decision of the Central Government.”

The fierce tussle is over the changes proposed in Rule 6. The proposed amendment has a new proviso ~ “Provided that each State Government shall make available for deputation to the Central Government, such number of eligible officers of various levels to the extent of Central Deputation Reserve (CDS) prescribed under Regulations referred to in Rule 4(1), adjusted proportionately by the number of officers available with the State Government concerned vis-a-vis the total authorised strength of the State Cadre at a given point of time.

The actual number of officers to be deputed to the Central Government shall be decided by the Central Government in consultation with the State Government concerned.” The original proviso under Rule 6(1) has been retained with this addition ~ “within a specified time”. That means, in case of disagreement between the State and the Central Government, the decision of the Central Government shall take effect within the timeline stipulated in the deputation order, which may be in the nature of a ‘marching order’ for the officer.

The argument of the State Governments is that an officer whom the Central Government may choose to take out of a state without the agreement of the State Government under whom he/she is serving, will stand released from his/ her current assignment forthwith. Some non-NDA ruled states find the revised amendment proposal more draconian than the former…; against the basic structure of India’s Constitutional scheme and destructive of the nation’s federal polity. They apprehend that it will create ‘fear psychosis’, promote arbitrariness and would “completely render” the officers and all State governments “at the mercy of the Central Government.”

There is lurking fear of immense potential for harassment and vendetta politics. Many retired civil servants have publicly forewarned about the adverse consequences and appealed for stalling the move. The Department of Personnel and Training, Government of India, has denied that the Centre was trying to accord itself undue powers and clarified that the States have not been sending officers for central deputation as per fixed ratio.

It has also been iterated that officers would be posted on central deputation only in consultation with the States but also made clear that “once the number of officers to come on deputation to the Centre is fixed after mutual consultation, the Central Government should have overriding powers to get those officers.” But often between the precept and the practice there falls the shadow. There have been instances when orders were issued by the Central Government without consulting the State Governments.

In June 2001, Tamil Nadu police raided former chief minister M Karunanidhi’s home and arrested him along with his DMK colleagues, Murasoli Maran and T R Baalu, both then Ministers in NDA Government. Piqued, the Central Government asked the State Government to send on central deputation the three IPS officers connected with the raids. Chief Minister Jayalalithaa not only refused but also wrote to other Chief Ministers canvassing support to protect the rights of the States. In yet another case, a Tamil Nadu cadre IPS officer was deputed to the CBI in 2014. The State Government refused to release the officer, but the officer joined the CBI. The State Government suspended the officer for defying its order. Later, the officer was appointed Lokpal in 2019 by the Government of India.

The tenure of Alapan Bandyopadhyay, an 1987 batch IAS officer and Chief Secretary of West Bengal was extended by a period of three months with the approval of the Appointments Committee of the Union Cabinet four days prior to his date of superannuation. But he was suddenly posted to Delhi on the day he would have normally superannuated. No consultation was done with the State Government, nor the willingness of the officer ascertained. There was nothing in the order to show why he was so urgently required in Delhi for a period of three months after his retirement.

Another case is of December 2020. The Centre asked that three IPS officers who were in charge of security when BJP president J P Nadda’s motorcade was attacked outside Kolkata on 10 December 2021 allegedly by supporters of the Trinamool Congress, be sent on deputation to the Centre. The State Government refused, citing a shortage of IPS officers. The Centre did not invoke the disagreement clause and the matter stood closed. The plea of the Central Government is that a mounting shortfall in civil servants deputed by State Governments to the Centre impelled the Centre to amend deputation rules to give itself powers to transfer officers without the consent of States.

According to regulations, the States must earmark 40 per cent of senior posts in every cadre to meet central requirements, but there is a CDR shortfall across States ranging between 61 to 95 per cent. There is, in particular, a shortage of joint secretaries, directors and deputy secretaries. Also, there is a shortage of IPS officers with the Central Government. A year ago, the Union Home Secretary wrote to Chief Secretaries reminding them of insufficient nominations of IPS officers to fill up vacant central police posts. The Centre maintains that the actual number of officers to be deputed will be decided only after due consultation with the State Government, even after the amendment to the AIS rules.

Officers of AIS ~ an Act of Parliament enacted in 1952 ~ are recruited by the UPSC and placed in various State cadres. They are expected to serve both the Central and State Government (home cadre) in various stints being the ‘shared asset’ of the Union and the States. However, if the officers are taken away on central deputation without prior consultation with the State Government and without ascertaining the willingness of the officer concerned, the Central Government may take away ~ or so the States fear ~ a star performer or a bold and upright officer from the State abruptly. Arbitrary central deputation is bound to disturb the planning and developmental work of the States and affect the service morale.

Upright officers too, as evident from some instances cited, could be subjected to punitive central posting if their actions ruffle political feathers. On the other hand, it is also a fact that generally IAS and IPS officers do not prefer to go on central deputation to below Joint Secretary level posts as they do not get the coveted facilities which they get as DM or SP. But certainly, there is an imperative need to bring middle level officers on Central deputation under a standing consultative machinery.

To quote Sardar Patel, an “all India service [….] must remain above party and we should ensure that political considerations either in its discipline or in its control are reduced to the minimum, if not eliminated altogether.” He had famously referred to civil servants as the ‘steel frame of India’. Given the evolving nature of electoral politics which tend to turn arbitrary, and at a time vindictive, vile or petty, ‘the steel frame’ must be preserved in its pristine purity.

The agreed formula of CDS must be implemented with due consultation with the stakeholders so that AIS officers refrain from developing a provincial or feudal mindset and broaden their perspective by serving, in their different stints, both the Union and the States, being the shared assets of the nation. Consultation and consensus, and not unilateralism, must inform decision making, being the bedrock of our cooperative federalism.

(The writer is ex Addl Secretary, Lok Sabha and a member of Delhi Bar Council. The views expressed are personal)