Updated on Dec 04, 2020 23:15:55

 

Myth of right of IPS officers for deputation to CAPF

Web Admin

Web Admin

5 Dariya News

New Delhi , 04 Jul 2020

OGAS TO CAPF (Organised Group ‘A’ Service To Central Armed Police Forces) has been trending in Twitter and all the print media are replete with mind-boggling articles on the ongoing tussle between cadre officers of CAPFs (Border Security Force, Central Industrial Security Force, Central Reserve Police Force, Indo Tibetan Border Police and Sashastra Seema Bal) and the IPS (Indian Police Service) officers. The IPS lobby is bent upon proving their supremacy over the cadre officers of CAPFs at the top supervisory levels. The cadre officers of CAPFs on the other hand claim to be the sons of the soil, possessing domain knowledge of the affairs of the internal security and border guarding. Under such charged atmosphere, as an ordinary citizen of the country and also as a student of law, it is my bounden duty to express my feelings and opinion on the subject which is so important and at the same time it is also concerning our national security.As a Central Government employee I am quite aware of the limitations imposed upon me by the provisions of Rule 8 of Central Civil Services (Conduct) Rules, 1964 and make it clear that the views expressed by me are my own and not those of Government. I am also of bona fide belief that the statement of fact or opinion expressed hereinunder neither has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government, nor is capable of embarrassing the relations between the Central Government and the Government of any State and also not capable of embarrassing the relations between the Central Government and the Government of any foreign State, as per limitation contained in provisions of Rule 9 of Central Civil Services (Conduct) Rules, 1964. 

As far as right of IPS officers to deputation to the top posts of CAPFs is concerned, the following facts may please be kept in mind while further forming a balanced opinion on the subject.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.

As per sub para (iv) of DoPT Office Memorandum (OM)1, dated 19 November, 2009, at least 50% of the vacancies in Junior Time Scale (JTS, i.e., Assistant Commandant rank in case of CAPFs) and all the vacancies above Junior Time Scale  and upto Senior Administrative Grade (SAG, i.e., Inspector General rank in case of CAPFs) level in such services are filled up by promotion from the next lower grade. As per sub para (v) of the same OM, ……….The cadre posts of an Organised Service expressly belong to that service……..

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 CAPFs, they can only come on ex-cadre posts. The submission that these can only be ex-cadre is further substantiated from para 2 of the IPS Tenure Policy2, relevant portion of which 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 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.

The DoPT’s OM3, dated 05.01.1996, lays down procedures for selection and appointment of Officers to Senior Administrative Posts at the Centre under the Central Staffing Scheme. Relevant portions are reproduced as under:

3. The Central Staffing Scheme has been in operation for over 30 years. It provides Systematic arrangement for selection and appointment of Officers to senior administrative posts at centre, excluding posts which are specifically encadred within the organised Group A Services or filled by recruitment through UPSC. All Officers who are so borrowed will serve the Govt. Of India for a stipulated tenure on deputation and, thereafter, return to their parent cadre. Their growth, development and career prospects will be mainly in their own services.

5. The scope of Central Staffing Scheme is bound by following parameters-

(i).............

(ii)............

(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.

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.Although officers in Pay Band - 3 and Pay Band - 4 in the CAPFs have been categorised under Organised Group ‘A’ Service ever since the year 1986, the Government of India has denied the cadre officers of CAPFs their lawful dues and treated them as General Central Service.Let us take the example of CRPF. 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, have not been made in the format of OGAS and following rank-wise fixed percentage of different senior level posts have been kept reserve for IPS and Brigadier of Army (including Ex-Brigadier) 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)

Rule 6 (1) of the IPS (Cadre) Rules, 1954 provides for deputation of IPS officers to the Central Government or another State Government or to a company association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government. Although IPS officers have so much of scope for career growth and to go on deputation to so many departments of Central Government and other areas, still rank-wise fixed  percentage of many senior posts have been kept reserve in CAPF for IPS officers. But, although CAPFs are Organised Group ‘A’ Services, no such provision for career growth for officers of CAPFs has been made, resulting into stagnation of officers in same rank for years together.

The career prospects of cadre officers of CAPFs have been made more pathetic by keeping many senior level posts reserved for IPS officers, which in itself is a gross violation of Article – 14 (Equality before law) and Article – 16 (Equality of opportunity in matters of public employment) and also the principle of natural justice. 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.

As per sub para - (ix) of para - 2 of Section - 5 of DoPT Monograph – 2010, 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.

Para 3.13 of the Monograph of 1993 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 Ministry/ Department of the Government 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.

Although all the posts of CAPFs are cadre posts but no such recruitment rules have been framed which are in line with the above mentioned guidelines of DoPT. As per sub para (a) of para 16 of Section 3 of DoPT Monograph – 2010, 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.

Similarly, sub paras (d) and (e) of para 16 of Section 3 of DoPT Monograph – 2010 read as under:  

(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.

The Hon’ble Supreme Court in it’s order dated 18 October, 20194, 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, 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. 

Therefore, 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. 

On the other hand, as per para – 4 of Section 3 of DoPT Monograph – 2010, members of a Service are expected to possess an intimate knowledge of the particular area or the function or the skill concerned. There is no doubt that the cadre officers of CAPFs possess domain knowledge. But the officers of Indian Police Service, who come on deputation for few years, do not possess an intimate knowledge of today’s highly specialised anti-Maoist, anti-insurgency or anti-terrorism operations and, therefore, they are not sound professionally to command the CAPFs.

Written by 

Madhumita Patra

Proud wife of a CAPF Officer

Bibliography:

1. No. I-11019/12/2008-CRD, dated 19 November, 2009.

2. OM No. I-21023/29/2007-IPS.III, Government of India, Ministry of Home Affairs, New Delhi, dated 30th March, 2010.

3. OM No. 36/77/94-EO (SM-I) dated 05.01.1996.

4. M.A No. 712/2019 in Civil Appeal No. 1474/2019.

 

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