The RRs of CAPFs are required to be amended to bring them at par with SRs (Service Rules) of other Organised Group ‘A’ Services (OGAS) so as to allow the cadre officers the benefits of Non Functional Financial Upgradation (NFFU) and assured career progression. Following are the reasons for which RRs of CAPFs are to be amended.
A. Case before the Hon’ble Delhi High Court
Date of Decision: 03.09.2015
G.J. SINGH & ORS. Versus UNION OF INDIA & ORS.
Prayers:
1. A writ of mandamus to grant them, i.e., Executive Group-A officers of CAPFs, the benefit of NFFU with effect from 01.06.2006, as given to other Officers of Group-A Service under PB- 3 & PB-4, as issued vide Office Memorandum (OM) dated 24th April, 2009.
2. They be formally declared as an Organized Group „A‟ Service with effect from 01.01.2006 with all consequential benefits.
3. Directions for amendment of the Recruitment Rules, i.e., CRPF Group-A (General Cadre Officers) Recruitment Rules, 2008 as notified on 10.08.2010 vide Notification No. GSR 679(E) issued by the Ministry of Home Affairs, Government of India.
Background:
1. The petitioners had represented to the respondents that the Government of India through order No. AB./14017/64/2008-Estt. (RR) dated 11.07.2011 issued by the Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, has granted NFFU to the Officers of Group-A Service in PB-3 and PB-4 after acceptance of the recommendations made by the 6th Central Pay Commission. The benefit has been conferred to such All India Service (AIS) officers who had been promoted after two years of service at the centre. However, it was not implemented in case of the petitioners although they were equivalent to the officers of corresponding status in the Government of India with respect to the all service conditions as per Rule 102 of CRPF Rules, 1955 which reads as under:
"CHAPTER XIII - APPLICABILITY OF CENTRAL GOVERNMENT RULES AND ORDERS 102.
Other conditions of Service: The conditions of service of members of the Force in respect of matters for which no provision is made in these rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status."
2. By the impugned for OM No. F. No. P.I.1/21022-Pers.DA-Pay, the Government rejected the request on the ground that the grant of NFFU is applicable to those Group A Services who are placed under the Central Staffing Scheme and come under „Organised‟ Group A Services to which the petitioners don‟t belong. Consequently, the line of argument in these petitions has broadly proceeded as under:
(i) What is NFFU?
(ii) What is „Organised Group A Services‟ vis-a-vis „Group A Services‟;
(iii) Whether the Government has regarded the petitioners as „Officers of Organised Group A Services‟;
(iv) If yes, whether they would be entitled to NFFU?
Contentions of the Petitioners
38. It is further contended on behalf of the petitioners that they meet all the attributes of an organised service and insofar as attribute (iv) is concerned, a deputationist can only come against ex-cadre posts, by virtue of their own Cadre Rules, therefore, all the vacancies from JTS to SAG levels are only filled by promotion from the cadre officers. Rule 11 of the IPS (Cadre) Rules, 1954 do not permit an IPS Officer to hold two cadre posts or a cadre post and an equivalent post simultaneously, except for a period not exceeding 6 months and in any case, not beyond 12 months and that too with prior approval of the Central Government. Therefore, as a corollary, when they come to CPMFs, they can only come on ex-cadre posts. The Monograph defines “ex-cadre posts” as posts having more or less similar functional duties and responsibilities as cadre posts and can be manned by both cadre and ex-cadre officers. The submission that these can only be ex-cadre is further substantiated from the IPS Tenure Policy which clearly provides in para 2. Insofar as it is relevant, it reads as under :-
“The cardinal principle is that an IPS officer so appointed will be available to serve on central deputation for a stipulated tenure and thereafter return to his/her parent cadre. The movement of Officers from State to the centre and back is of mutual benefit to the State to the centre and back is of mutual benefit to the States and the Government of India on the one hand and to the Officers concerned on the other. No posts so filled by a member of IPS on deputation can be deemed to be a cadre post of the parent State.”
39. The DoPT issued an O.M. No. 36/77/94-EO (SM-I) dated 05.01.1996 under the Central Staffing Scheme to lay down procedures for selection and appointment of Officers to Senior Administrative Posts at the Centre. Relevant portions are reproduced as under :-
“5. The scope of Central Staffing Scheme is bound by following parameters-
(iii) Every State cadre of each of these services (IAS, IPS and IFS) provides for a Central deputation quota which in turn requires additional recruitment to be made to these services....... However, no post so filled by a member of any All India Service on tenure deputation can be deemed to be a cadre post of that service.”
40. ………. In fact, the petitioners have taken a clear stand in the petition that the IPS officers come on ex-cadre posts and this has not been denied in the counter affidavit. It is also pointed out that three Forces have a large strength of about 10,000 Officers in Group “A” and are fully eligible for promotion. They are in fact, stagnated for prolonged periods even after meeting all the requisites of the extant promotion rules. The data given in the appendix would make the position clear. The noting of the Government in one of its own files bearing no. P- I-1/2012 Pers-DA-Pay notices the fact that non-fulfilling the attributes cannot be attributed to the Force and it is not as if the Force is short of officers to fill up the vacancies upto IG Rank. The note also records that the cadre officer should not be in a disadvantageous position in terms of delay in promotional avenues.
43. In support of their contentions, the petitioners rely upon a judgment dated 6 May, 2004 passed by the Hon’ble Supreme Court in Appeal (Civil) 793 of 1998 in the matter of State of Mizoram v. Mizoram Engineering Service wherein it was observed as follows:
“……… The main reason for dubbing Engineering Service as an unorganized service in the State is absence of recruitment rules for the service. Who is responsible for not framing the recruitment rules ? Are the members of the Engineering Service responsible for it ? The answer is clearly “No”. For failure of the State Government to frame recruitment rules and bring Engineering Service within the framework of organized service, the engineers can not be made to suffer…………”
45. Thereafter, the petitioners rely upon a Division Bench judgment of this Court in K.L. Noatay v. UOI & ORS., WP(C) NO. 4377/2003 which held that due to non encadrement of officers cadre as an organized service, the promotion prospects cannot be denied and such patently arbitrary, discriminatory policy decision of the State can be interfered with by the Court and the Administrative cadre officers of BRO were directed to be encadred as an organized cadre.
Contentions of the Government
67. He refers to para 3.13 of the Monograph of 1993 which reads as under:
…………………………….To the petitioner‟s contention that assuming that the expression „Organised‟ has indeed been used by DoPTwith a valid explanation, no legal sanctity can be attached to it for the reason that it cannot substitute or override Recruitment Rules, the learned ASG would contend that in terms of allocation of Business Rules, the administration of Service Rules including FRs, SRs and CSRs, conditions of service of Central Government Employees, issued for formal orders of the Govt. of India in matters relating to amendments to service rules is the subject matter of DoPT. Therefore, any changes in the service has to be suitably incorporated in the RRs. He refers to para 3.13 of the Monograph of 1993 which reads as under:
“Recruitment rules are a sine-qua-non for creation and continuation of any posts, for an organised service. There have been instances where Service cadres have been constituted even before framing proper recruitment rules. In some cases such situation (existence of Service without proper recruitment rules) continues for quite some time giving rise to distortion in cadre management. The department of Personnel and Training have been issuing guidelines and instructions from time to time in regard to framing of recruitment rules. The Department of Personnel and Training (Establishment Division) have issued a Hand Book in 1984 wherein the various guidelines together with the model recruitment rules have been published for the use of Min/ Deptt. of the Govt. of India. The Hand Book enables the cadre authorities to frame recruitment rules in respect of posts included in the cadre under their control in a rationale manner. It should also be checked and ensured that the recruitment rules already framed are in line with the guidelines”.
68. As to the procedure for declaration of a service as an „Organised Service" the Respondent‟s affidavit states as under:
"An „Organised‟service is constituted consciously and through established procedures. The procedure for grant of Organised Service status is same as the Cadre Review procedure. As per the procedure, the administrative Ministry prepares a proposal and refer the same in form of a CoS (Committee of Secretaries) Note to DoPT with approval of Minister in Charge and Integrated Finance Division. The proposal is examined in DoPT and with the approval of Secretary (P), the same is sent for approval of Secretary (Expenditue). After approval of Deptt. Of Expenditure, the proposal is placed for approval of The Cadre Review Committee (CRC) headed by Cabinet Secretary. The Recommendation of CRC is approved by Minister of State (PP) and Finance Minister. Thereafter, approval of Cabinet has to be obtained by the Administrative Ministry. Latest guidelines on cadre review has been issued vide OM No. I-11011/1/2009-CRD dated December 14, 2010"
The main observations of the Hon’ble Delhi High Court
73. The crux of this matter is the Government‟s classification of Group A services as organized or otherwise and whether the officers of the CAPFs (previously knows an CMPFs) are a part of Organized Central Group - A Services. The Court would note that the issue in these cases is not fixation of pay scale as argued by the learned ASG but is in fact, whether the Government itself has at anytime acknowledged or stated that such officers of the CAPFs form a part of organised Group-A Services. Therefore, the reference to and reliance on various judgments referred to above in Para 63 in his contentions above are misplaced because those precedents deal with fixation of pay and not with classification of services in „organised‟ and unorganised cadres which is the issue in this batch of writ petitions.
81. ………………….The Court is of the view that the presence of reports and other documents explicitly stating the CAPFs are an Organised Group „A‟ Service evidences that they have been constituted consciously and through established procedures.
“84.The issue of acknowledging the petitioners as OGAS has been pending for some time like a festering wound. From the preceding discussion, the Court would note although from the government records it can clearly be seen that the Petitioners have over and over again been recognised as OGAS, an element of obfuscation has been kept alive. It cannot be overemphasised that in matters relating to the armed forces and the paramilitary/CAPFs there ought to be clarity and certainty apropos the service benefits which the forces would be entitled to. An element of greater dispatch in taking decisions governing their service conditions would always be requisite. Therefore, to the extent that the OM dated 19/20.11.2009 and OM dated 28.10.2010 themselves leave scope for interpretation, it could well be said that there is a level of arbitrariness in them. The government having repeatedly acknowledged the Petitioners in their various communications as belonging to OGAS cannot be allowed to reprobate there from.
Order of the Court
(i) The Court is of the view that the petitioners, i.e., officers in PB-3 and PB-4 in the CAPFs (CRPF in the present instance) have been categorised under Organised Group “A” Service ever since the year 1986. Hence, the benefits contemplated by the 6th CPC by way of NFFU to remove disparity between All India Services and other Organised Central Group “A” Services, ought to be granted to them. Accordingly, the impugned OM dated 28.10.2010 and all other letters whereby the petitioners’ request for the grant of NFFU was rejected, cannot be sustained and are hereby quashed.
(ii) The Writ Petitions are allowed. The respondents shall issue requisite notification granting the benefits of Non Functional Financial Upgradation as recommended by the 6th Central Pay Commission to the Petitioners within eight weeks from this order.
Conclusion on Court’s order
Since the Writ Petitions have been allowed and one of the prayers of the Petitioners was to give directions for amendment of the Recruitment Rules, i.e., CRPF Group-A (General Cadre Officers) Recruitment Rules, 2008 as notified on 10.08.2010 vide Notification No. GSR 679(E) issued by the Ministry of Home Affairs, Government of India, it is quite clear that the said Recruitment Rules have to be amended so as to make them in conformity with the norms of Organised Group A Service (OGAS), i.e., Service Rules are to be formulated.
The CAPFs have been Organised Group ‘A’ Services (OGAS) since 1986. It was the duty of the Government to fulfill all the attributes over a period of time. CAPFs were fulfilling all the attributes of OGAS as per DoPT Monograph – 1993.
However, the attribute which has been mentioned at Para (iv) of DoPT OM dated 19/20.11.2009 has not been fulfilled by the Government just to give preferential treatment to the IPS officers at the cost of career interest of cadre officers which is described in details in the succeeding paragraphs.
On the strength of this attribute, which has been lacking in CAPFs, the Government has opposed the claim of the petitioners before the Hon’ble Delhi High Court that they are OGAS. But contention of the Government was untenable in view of the judgment dated 6 May, 2004 passed by the Hon’ble Supreme Court in Appeal (Civil) 793 of 1998 in State of Mizoram Vs Mizoram Engineering Service, as mentioned in Para 43 of judgement in G.J. Singh case. Because for the failure of the Government to fulfill the attributes of OGAS for CAPFs since 1986, the cadre officers can not be made to suffer.
B. Approval of Union Cabinet
On 3 July, 2019, the Union Cabinet granted approval for implementation of the order of the Hon’ble High Court of Delhi dated 3 September, 2015, which was confirmed by the Hon’ble Supreme Court on 5 February, 2019. As per orders of the Hon’ble Courts and as approved by the Government of India, Border Security Force (BSF), Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF), Indo Tibetan Border Police (ITBP) and Sashastra Seema Bal (SSB) are Organised Group ‘A’ Services since 1986 as per Department of Personnel and Training (DoPT) Monograph and, therefore, all the cadre officers of CAPFs are entitled to benefits of promotion and pay with effect from 1986.
Since now the CAPFs are OGAS, all the attributes as laid down in the DoPT Monograph – 2010, dated 9 December, 2010 and DoPT OM dated 19/20.11.2009 have to be met by the Government.
C. To fulfil the various attributes of OGAS in respect of CAPFs as given in the “existing Monograph”
(From the introductory remarks of DoPT OM dated 19/20.11.2009, Monograph – 1993 can be termed as existing Monograph for CAPFs)
1. The CRPF Group-A (General Cadre Officers) Recruitment Rules, 2008 as notified on 10.08.2010 vide Notification No. GSR 679(E) issued by the Ministry of Home Affairs, Government of India (hereinafter referred to as RRs – 2010 of CRPF), have been framed considering it to be General Central Service, although all the CAPFs (BSF, CISF, CRPF, ITBP and SSB) have been categorised under Organised Group A Service ever since the year 1986. As a result of that, the promotional norms have been made more stringent and residency periods in each grade or post have been increased. By doing so, their promotional avenues for occupying higher posts have been blocked with a view to get those posts filled up with IPS officers and Brigadier of Army (including Ex-Brigadier), on deputation, for whom following rank-wise fixed percentage of different senior level posts have been kept reserve, which is against the spirit of OGAS:
(i) DG - 100% IPS on deputation
(ii) SDG - 100% IPS on deputation
(iii) ADG – 66-2/3% IPS on deputation
(iv) IG - 50% IPS on deputation
(v) DIG - 18% IPS and 2% Serving Army Officer on deputation (or 2% retired Army Officer on re-employment).
In no other Organised Group A Service rank-wise fixed percentage of different senior level posts are kept reserved for officers of other services to come on deputation.
IPS officers are not needed to fulfil the functional requirement of CAPFs
Para 3.1, under heading Considerations Underlying Cadre Review – Attributes of an Ideal Cadre Structure, of DoPT Monograph – 1993, is reproduced below:
The concept of a regular Group ‘A’ Service, the way it is constituted and its grade structure have been explained earlier. The various attributes of an ideal cadre of a Central Group `A' Service are elaborated in the following paragraphs with specific reference to the existing structures, their deficiencies, the need to rectify them through periodical reviews and the methodology of the review exercises.
a) The functional needs of a regularly constituted service ought to be fully met by cadre posts without having to take recourse to ex-cadre posts. Conversely, cadre posts should entirely cater to the functional requirements of the Service and should not be utilised for performing functions other those for which the Service is intended;
b) The grades into which the cadre is divided should be clearly distinct in the sense that each carries a distinct level of responsibility within the functional area of the concerned service. The posts within a grade should also be inter-changeable;
c) The cadre structure should facilitate smooth mobility for its members both horizontally and vertically. Thus, while the posts in the same grade may be interchangeable, any member of a grade should be capable of moving up and discharging the duties of a post in a higher grade;
d) An ideal cadre should be capable of fulfilling the legitimate career expectations of the member of the Service. The expectations, however, have to be in harmony with the functional needs of a Service; and
e) Every cadre structure should have separate provision for various types of reserves like probation, training, leave and deputation.
Para 16 of Section 3 under heading Definitions and Concepts and Sub heading (Attributes of an ideal cadre) of DoPT Monograph – 2010, dated 9 December, 2010, also contain the same provisions.
Now let us concentrate on the provision on Functional Requirements clause. It is clearly mentioned in both the Monographs of DoPT that the functional needs of a regularly constituted service ought to be fully met by cadre posts without having to take recourse to ex-cadre posts. Conversely, cadre posts should entirely cater to the functional requirements of the Service.
Note of DoPT OM dated 19/20.11.2009, reads as under:
Note: The existing Organised Group ‘A’ Services have evolved over a period of time and may have minor deviations owing to their respective functional requirements. The services already declared as such need not, however, be reviewed.
Para 81 of judgement in G.J. Singh case reads as under:
………………….The Court is of the view that the presence of reports and other documents explicitly stating the CAPFs are an Organised Group „A‟ Service evidences that they have been constituted consciously and through established procedures.
Since CAPFs are regularly constituted service their functional needs ought to be fully met by cadre posts without having to take recourse to ex-cadre posts as provided in both the Monographs of 1993 and 2010.
Therefore, the minor deviations which have been created in the CAPFs, which are OGAS since 1986, are not due to functional requirements, rather to give preferential treatment to the IPS officers at the cost of career interest of cadre officers and, therefore, cadre officers can not be made to suffer for the fault on the part of the Government.
Secondly, relevant portion of Para 84 of judgement in G.J. Singh case reads as under:
Therefore, to the extent that the OM dated 19/20.11.2009 and OM dated 28.10.2010 themselves leave scope for interpretation, it could well be said that there is a level of arbitrariness in them. The government having repeatedly acknowledged the Petitioners in their various communications as belonging to OGAS cannot be allowed to reprobate there from.
Since the DoPT OM dated 19/20.11.2009 is arbitrary, it can not stand the scrutiny of law and, hence, required to be quashed.
In view of the Sub Para 3.1 (a), under heading Considerations Underlying Cadre Review – Attributes of an Ideal Cadre Structure, of DoPT Monograph – 1993, and nullity of DoPT OM dated 19/20.11.2009, for functional requirements of CAPFs, IPS officers are not needed.
The Monograph of DoPT clearly prohibits deputation of officers to CAPFs from other organisations.
Secondly, as per sub para (v) of DoPT Office Memorandum (OM) No. I-11019/12/2008-CRD, dated 19 November, 2009, ……….The cadre posts of an Organised Service expressly belong to that service……..
The Hon’ble Supreme Court in it’s order dated 18 October, 2019, in M.A No. 712/2019 in Civil Appeal No. 1474/2019, has held as under;
….while deciding the appeals, this Court has made no observations with respect to the right of the IPS Officers for deputation, in terms of the recruitment rules, if any, as the same was not the controversy and/ or issue before this Court and the decision of this Court shall be construed with respect to grant of Organised Group ‘A’ Central Services only.
However, para – 2.3 of Tenure Policy for IPS officers on Central deputation issued by Ministry of Home Affairs, Government of India vide OM No. I-21023/29/2007-IPS.III, dated the 30th March, 2010, reads as under:
Every State cadre of the IPS provides for a Central deputation quota which in turn requires additional recruitment to be made to the Service to provide for trained and experienced members to serve on posts in the Central Government. Accordingly, utilisation of the Central deputation quota of different State cadres is an important factor governing the scale at which officers are borrowed from the various State cadres of the Service. However, no post so filled by a member of IPS on deputation can be deemed to be a cadre post of the parent State.
Similarly, no individual member of IPS can claim any right to appointment to a post under the Government of India.
It is quite evident from the preceding paragraphs that neither any of the orders of the Government of India, nor the order of the Hon’ble Supreme Court confers any right on the IPS officers for deputation to the CAPFs.
Therefore, in the final analysis it can be said in order to repeal the provision of rank-wise fixed percentage of different senior level posts, Recruitment Rules of CAPFs are to be compulsorily amended or new Service Rules are to be framed.
2. The following important aspects of an OGAS are also required to be fulfilled in accordance with the provisions of the Monograph of DoPT – 2010 for which Recruitment Rules are to be amended
Section 3 (Definitions and Concepts)
Duty Posts and Reserves
8. The reserves are of four types, viz. (i) probationers reserves (ii) leave reserve (iii) training reserve and (iv) deputation reserve. Every organised service normally provides for probationers reserve in order to cater to the requirements of probation which has to be undergone by direct recruits to the service. Probationers reserve cannot be considered part of regular duty posts of a service as they are not intended to perform the regular service functions. Officers undergoing probationary training are shown against probationer reserve. The strength of reserve depends upon the size of the normal annual intake through direct recruitment and the period of probation required to be put in by direct recruits.
9. The other reserves, namely leave, training and deputation reserves are intended to serve as substitute for regular duty posts in the event of service officers holding duty posts being temporarily away from their cadre on leave, training or deputation. That is, it is expected that at any time there will be some officers who are on leave, deputation or training. In order that the work does not suffer due to their absence, extra posts are provided. The various types of reserves including probations reserve are usually created in the junior time scale.
Recruitment
10. At the Centre, recruitment is made to a `Service' rather than to a post, at least in so far as organised services are concerned. In general, recruitment to a Group `A' Service takes place at the lowest level, i.e. at the level of Junior Time Scale which may be called the entry point. There are generally two sources of recruitment, viz. (a) direct recruitment i.e. recruitment from the open market through an open competitive examination or an interview or a combination of the two and (b) recruitment through promotion from the Group `B' cadre.
11. Direct recruitment to all non-technical Group `A' Services is made through a combined competitive examination (Civil Service Examination) conducted by the Union Public Service Commission on an annual basis. Candidates selected for different services as a result of this examination are trained in the functional fields to which they are subsequently allotted. As regards technical services, there is a different type of combined competitive examination also conducted by the U.P.S.C. in different areas of specialization, e.g. Civil Engineering, Electronics, etc.
12. In the case of departmental promotion (from Group `B' feeder cadres) to Group `A' the promotion quota for the purpose varies from Service to Service. Above the level of Junior Time Scale, posts/vacancies are generally filled through promotion from the next lower levels. There are, however, a few exceptions in which lateral entry (i.e. direct recruitment from open market) takes place at levels higher than junior/senior time scale. Such lateral entry is generally through an interview (without a written test). In a few cases promotion of Group `B' Officers is effected directly to the senior scale of the concerned Group `A' Service, the junior scale posts being exclusively confined to direct recruits from the open market.
Section 4 (General deficiencies of cadre structure and management)
It is a common knowledge that a number of organised Group `A' Central Services have cadre structures that do not accord with one or more of the various requirements of an ideal cadre structure. Certain distortions have crept in some services over a period owing primarily to inadequate cadre management and irregular recruitment. Some of the deficiencies noticed in the cadre structures of organised services are detailed below.
(i) Poor recruitment planning: For smooth and proper cadre management, advance projections of manpower requirements should be undertaken at least once in a period of five years. Improper recruitment planning may lead to under-recruitment, over recruitment or other ad-hoc measures. Promotion blocks occur due to large scale recruitment carried out after a spell of prolonged under recruitment. This causes frustration among service officers resulting in less of morale and motivation. Unplanned or haphazard recruitment also leads to avoidable strain on organisational facilities during the years of bulk recruitment and under-utilisation of facilities during years of under recruitment.
(ii) Lack of functional clarity: In some cadres, the functional needs and requirements of the service are skipped and members are assigned functions which are strictly not in the operational area of the concerned service. This distorts the original objectives of the Service, erodes its functional role and renders the Service in effective. In some cases, a large number of functional posts are found outside a functional Service, e.g. Indian Economic Service. Members of the Service are often deputed to ex-cadre posts in the same functional area. It is desirable that all ex-cadre posts be merged into appropriate Service as far as possible.
(iii) Deficient cadre structure- A well constituted cadre is one that fulfills both the functional objectives of the Service and legitimate career aspiration of its members. It, however, depends on how the cadre has been structured at the time of the constitution of the Service and the manner in which it has been maintained. The cadre controlling authorities are sometimes compelled to resort to ad-hoc measures because functional requirements of the Organization concerned are not accurately anticipated or there are abrupt bottlenecks in promotions. Obviously, in a structure which is too wide at the bottom or even at the middle level tapering off to a very narrow top, promotional avenues for its members are severely restricted causing frustration among them and reducing the effectiveness of the Service.
(iv) Poor provision of reserves: Another serious lacuna of some organised cadres is the lack of provision for one or other types of reserves giving rise to cadre management bottlenecks. (v) Absence of recruitment rules: Finally, there are some services which do not have proper and updated recruitment rules.
Section 5 (Objectives of a Cadre Review)
2. (ix) Encadrement of ex-cadre posts- . Often departments create for various reasons, a number of posts having more or less similar functional duties and responsibilities as the cadre posts. Such posts are manned by both cadre officers and those outside the cadre(s). It should be the constant endeavour of Cadre Authorities to periodically review the position regarding such posts with a view to encadre them keeping in view :-
(a) the nature of functions and responsibilities attached to them.
(b) the likelihood of their continuing:
(c) the desirability of deploying cadre officers to such posts.
Section-6 (Broad Guidelines for formulation of cadre review proposal)
(2) Personnel Aspect
(iv) Recruitment/Service Rules-The changes required in the Recruitment/Service Rules because of cadre review may be analyzed. A copy of updated Recruitment/Service Rules should be enclosed.
(5) Statistical Aspect
(v) The recruitment rules with latest amendments should invariably be enclosed to the proposal papers as also the organisational and functional charts. The organisational charts should indicate the current position as also the position expected to obtain if the proposals are approved by the Cadre Review committee.
D. Administrative orders of DoPT must be applied uniformly to all Organised Group ‘A’ Services
1. As per Para 2.4 of the DoPT OM No. AB.14017/12/87-Estt. (RR), dated 18.03.1988, as for Organised services, comprehensive service rules shall be framed covering, inter-alia, the following aspects :-
1 Short Title and Commencement 10 Probation
2 Definitions 11 Appointment to the service
3 Constitution 12 Liability for service in any part of India other conditions of service
4 Grades, Authorised Strength and its review 13 Disqualifications
5 Members of the Service 14 Power to relax
6 Initial Constitution of the Service 15 Savings
7 Future maintenance of the Service 16 Interpretation
8 Initial Constitution of the Service 17 Repeal
9 Seniority
The usage of the word “shall” in the above OM is a pointer that the provisions are mandatory in nature.
The same is reiterated at Para 2.3 of DoPT OM No. AB.14017/48/2010-Estt. (RR), dated 31.12.2010.
None of the mandatory aspects as mentioned above are ¬¬¬¬incorporated in the Recruitment Rules of CAPFs.
2. The definitions of Recruitment Rules and Service Rules have been provided in the Questions No.1 and 2 respectively of FAQs on Recruitment Rules issued by DoPT vide OM No. AB.14017/13/2013-Estt. (RR) (1349). Their definitions can be reproduced below:
Recruitment Rules are rules notified under proviso to Article 309 or any specific statutes for post(s) prescribing inter alia the method of recruitment and eligibility for such recruitment. It contains notification part having substantive rules and schedule part (as per prescribed Annexure-I). Recruitment Rules are subordinate legislation and so, they are statutory in nature.Service Rules are Recruitment Rules for any of the Oranized Central Services covering many aspects including constitution of the Se ice, seniority, probation and other conditions of service.
3. There are clear directions by the following OMs of DoPT to amend RRs/ SRs to bring about pay parity of OGAS at par with IAS:
(i) OM No. AB.14017/64/2008-Estt.(RR), dated 24.04.2009.
(ii) OM No. AB.14017/61/2008-Estt. (RR)/Pt., dated 15.12.2009.
(iii) OM No. AB-14017/48/2010-Estt.(RR), dated 31.12.2010.
(iv) OM No. AB-14017/61/2008-Estt.(RR), dated 25.03.2014.
(v) OM No. AB-14017/14/2018-Estt.(RR)(3139661), 08.05.2018.
RRs/ SRs of all other OGAS have already been suitably amended in accordance with the above OMs.
4. In the Question No.5 of FAQs on Recruitment Rules issued by DoPT vide OM No. AB.14017/13/2013-Estt. (RR) (1349), the reason as to why are Recruitment Rules amended has been provided, which is reproduced below:
Revision in the Recruitment Rules is made by way of amendment to incorporate changes due to implementation of Central Pay Commission Report, modification of orders/ instructions on the subject, creation/ abolition of posts etc. during the intervening period.
5. In the Question No.29 of FAQs on Recruitment Rules issued by DoPT vide OM No. AB.14017/13/2013-Estt. (RR) (1349), the definition of “Deputation” has been provided, which is reproduced below:
Deputation is a method of recruitment where officers of Central Government Departments or State/ UT Governments from outside are appointed to post(s) in Central Government for a limited period, by the end of which they will have to return to their parent cadres. In case of isolated post, it is desirable to keep the method of recruitment of deputation/ short term contract as otherwise the incumbents of such posts, if directly recruited, will not have any avenue of promotion/ career progression.
As per answer to question No.35 of the above mentioned FAQs, the maximum age limit for appointment on deputation (including short term contract) or absorption shall be not exceeding 56 years as on the closing date of receipt of applications.
6. Recruitment Rules of CAPFs are meant only for appointments on promotion/ deputation for the functional posts. The enforcement of the existing RRs for granting the Non-Functional Financial Up-gradation (NFFU) is delaying the financial benefits, due to the petitioners, by many years. The absence of the required statutory Service Rules as per OGAS norms can not be allowed to deprive the legitimate NFFU dues to the petitioner, more so, when the petitioners are not at fault. Application of the Rules which are disadvantageous to the cadre officers of CAPFs and are also not as per OGAS norms, are against the well established principles of justice, equity and good conscience.
7. DoPT Order dated 12.07.19 has also granted OGAS Status to RPF along with the CAPFs and the process of framing of Service Rules of RPF is at the final stage. Consequent on grant of Organized Group ‘A’ Service (OGAS) status to the Group ‘A’ officer cadre in Railway Protection Force (RPF), the Ministry of Railways has notified the name of the Group ‘A’ cadre mentioned above as Indian Railway Protection Force Service (IRPFS) vide letter no. 2013/E(GR)1/36/10 (Part-I) dated 30.12.2019.
E. To uphold the Constitutional Provision of Right to Equality (Article 14)
1. The residency period in each grade or post prescribed for promotion to the next higher grade as prescribed by DOPT OM No. AB 14017/61/2008-Estt. (RR) dated 24.3.2009 and dated 12.3.2010 vis a vis the residency period for officers of few other Organised Group A Services and officers of CRPF (one of the CAPFs):
Services
Promotion As prescribed by DOPT OM No. AB 14017/61/2008-Estt. (RR) dated 24.3.2009 and dated 12.3.2010 Indian Revenue Service (Customs & Central Excise) (IRS - C & CE) Indian Trade service (ITS)
Indian Statistical Service (ISS) Central Reserve Police Force Group A (As General Central Service)
JTS (Grade Pay – 5400) to STS
(Grade Pay – 6600) 5 years 4 years service in the Grade 4 years service in the Grade 4 years service in the Grade 6 years service in the Grade
STS to JAG (Grade Pay – 7600) 5 years 5 years regular service in the Grade 5 years service in the Grade
5 years regular service in the Grade 11 years group A service with 5 years in the Grade
JAG to Selection Grade (SG) Grade Pay (8700) 5 years On completion of 13 years of service On completion of 13 years of service On completion of 13 years of service 16 years Group A service with 5 years in JAG
SG to Super Time Scale (SAG) (Grade Pay – 10000) 3 years 8 years regular service in JAG including NFSG or
17 years group A service with 4 years in JAG 8 years regular service in JAG including NFSG
or
17 years group A service with 4 years in JAG 8 years regular service in JAG including NFSG
or
17 years group A service with 4 years in JAG SG to P-13A (Grade Pay – 8900)
20 years group A service with 3 years in the SG.
To SAG
(Grade Pay -
10000)
24 years group A service with 3 years in the P-13A grade.
SAG to HAG 3 years 3 years regular service in SAG Including NFSG or
25 years group A service with 1 year in SAG 3 years regular service in SAG Including NFSG
or
25 years group A service with 1 YR in SAG 3 years regular service in SAG Including NFSG
or
25 years group A service with 1 YR in SAG 30 years group A service with 3 years in the SAG
Note: P-13A, i.e., rank equivalent to DIG does not exist in IAS or other Group A Services. In Indian Administrative Service (Pay) Rules, 2007, SAG is termed as Super Time Scale, whereas, in Indian Police Service (Pay) Rules, 2007, both the pay scales of DIG and IG are mentioned as Super Time Scale.
No residency period in each grade or post is prescribed for promotion to the next higher grade or post for IAS officers. The promotion will be done on the basis of total length of service. However, residency period for other Group A Services and CAPFs are prescribed. But in that also there is clear discrimination between other Group A Services and CAPFs.
The SRs are, therefore, required to be formulated to reduce the residency periods so as to make them similar to those of other OGAS for greater interest of justice and equality. Because the order of DoPT has linked the benefits of NFFU with the promotional criteria. Unless an officer fulfills the promotional criteria first, he would not be considered for granting the benefits of NFFU. Therefore, unless the SRs of CAPFs are formulated in conformity with those of other OGAS, pay parity for them at par with IAS, as envisaged in the DoPT OM No. AB.14017/64/2008-Estt.(RR), dated 24.04.2009, can not be brought about.
2. Promotion of officers in CAPFs are vacancy based. In the prevailing conditions of CAPFs, an officer who had joined as Assistant Commandant (AC), i.e., JTS, has been languishing in that same rank itself for last 9-10 years. There are many officers who had joined CAPFs as directly appointed AC, especially in BSF and CRPF, have not yet been promoted to the rank of Commandant (Selection Grade) even after putting in 20 years of service. Many Commandants and DIsG (both the ranks are JAG) have been carrying the same rank badges for last more than 10 years and even after putting in on an average of 26 years and 30 years of service respectively, they have not been found eligible for grant of SAG. A simple comparison of such officers with officers of other OGAS would very clearly show the level of discrimination against those officers of CAPFs, although they also belong to OGAS. Since they do not fulfil the criteria for promotion in view of long residency periods in each rank, they are not getting SAG and HAG respectively.
3. The major shortcomings in the existing RRs of CAPFs in comparison to other OGAS can be described as under:
(i) Longer residency periods in each rank.
(ii) Minimum length of service required for promotion to each rank is more compared to other OGAS.
(iii) No provision for probation, training, deputation and leave reserves.
(iv) Reservation of many posts, especially at higher levels, for officers of other services to come on deputation.
4. The discriminatory treatment, violating Article 14 of the Constitution, is being meted out to the officers of CAPFs due to non-implementation of the following policies and orders of DoPT:
(i) Accepting the recommendations of 6th CPC for bringing uniformity in eligibility criteria across various Organised Group A services for promotions, the DoPT vide OM No. AB.14017/61/2008-Estt. (RR)/Pt., dated 15.12.2009, has directed the cadre controlling authorities to initiate action for appropriate amendments in the Service Rules.
(ii) As per Para - 3.1.5 of DoPT OM No. AB-14017/48/2010-Estt.(RR), dated 31.12.2010, the Recruitment Rules should be reviewed once in 5 years with a view to effecting such changes as are necessary to bring them in conformity with the changed position.
It’s now a changed position for CAPFs because all the posts upto SAG (rank of IG) are to be filled with cadre officers, i.e. encadrement of ex-cadre posts as provided in Sub-para - (ix) of Para - 2 of Section - 5 of DoPT Monograph - 2010.
The above rule has been reiterated vide DoPT OM No. AB-14017/61/2008-Estt.(RR), dated 25.03.2014 and DoPT OM No. AB-14017/14/2018-Estt.(RR)(3139661), dated 08th May, 2018.
(iii) Para - 3 of the DoPT OM No. AB-14017/14/2018-Estt.(RR)(3139661), dated 08th May, 2018, also mentions that since RRs are statutory in nature and all promotions/ appointments are made as per the provisions in the RRs/ SRs, it is imperative that the RRs/ SRs are updated in accordance with DoPT instructions issued from time to time.
F. Concluding Remarks
It, is, therefore, imperative to formulate the SRs of CAPFs to make them OGAS compliant and at the same time, pending their amendment, the financial benefits of NFFU to all cadre officers of CAPFs must be given at par with the pay which has been allowed in each grade (JAG, SG, SAG and HAG) to the IAS officers who are junior to them by two years or more and had not so far been promoted to those particular grades. And for this to happen, one time exemption in eligibility criteria for all grades to all the officers of CAPFs must be allowed to meet the end of justice. Because, it is the Government, and not the individual officer, who is responsible for non-fulfilment of eligibility criteria.
Written by
Madhumita Patra
Proud wife of a CAPF Officer