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If they want to make you DGP, can you say no? SC raises question in Nagaland row, sparks debate

Apex court asked MHA to clarify if IPS officers on central deputation can turn down state posting. Matter arose after Sunil Achaya, posted in RAW, 'expressed unwillingness’ to be Nagaland DGP.

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New Delhi: Can Indian Police Service (IPS) officers on central government deputation refuse a posting to their cadre state? A centrally deputed Nagaland-cadre police officer’s ‘reluctance’ to be empanelled as a prospective DGP has triggered this debate in the Supreme Court.

An apex court bench of Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha asked the Ministry of Home Affairs (MHA) Monday to file an affidavit to explain whether “concurrence of an officer” on central deputation is necessary for appointment as DGP.

The court’s observation came after the Nagaland government submitted that the United Public Service Commission (UPSC) had on 15 December forwarded a “panel” of prospective DGPs to the state, but the list had only one name —  1992-batch officer Rupin Sharma, who was appointed as Nagaland DGP earlier this month.

The UPSC, however, had left out the name of another eligible Nagaland-cadre IPS officer, A. Sunil Achaya of the 1991 batch, on the grounds that he had expressed his “unwillingness” to fill the position. Achaya is currently posted in the Research and Analysis Wing (RAW), a central intelligence agency.

In its submission to the top court, the Nagaland government said Achaya did not have any vested right to decline and that by not including his name in the panel, UPSC had deprived the state from making an “informed choice”.

The state further said that in 2018 the MHA had refused to relieve Achaya on the ground that he was holding a sensitive post. But in the present occasion, the submissions stated, the objection had only come from the officer and not the ministry.

The Nagaland government also argued that an officer’s consent is needed only in the case of overseas postings, and that the UPSC had no good reason to omit Achaya as a candidate. ThePrint has accessed copies of the submissions to the court.

Senior serving and retired IPS and IAS officers that ThePrint spoke to seemed divided on whether members of the All-India Service (AIS) have a “choice” in their postings, positions, and empanelment.

While some were categorical that the question did not arise, others hinted that it was a grey area.

Speaking to ThePrint, Prakash Singh, a retired IPS officer and former DGP called the arguments of the MHA and UPSC “unacceptable”.

“The question of an individual officer saying whether he is inclined or disinclined to be empanelled or posted to a particular position does not arise,” said Singh. “The empanelment exercise is supposed to be a confidential bureaucratic exercise. The officer should not be consulted and asked about his choice or opinion. That is how the AIS rules work,” he added.

Singh, notably, played a pivotal role in bringing about police reforms in India. In 1996, he had filed a public interest litigation before the Supreme Court seeking to address the issue of political interference in the affairs of the police. In 2006, the SC delivered a landmark verdict bringing about reforms in appointments and other critical issues.

When asked to comment, UPSC counsel Naresh Kaushik said that there were no clear answers on the matter.

“This is a subjudice matter. Nothing definite has come up. There is no clear definition of certain things. Everything is evolving and nobody knows what view the court will take,” he said.


Also readWho will be Nagaland’s next top cop? DGP’s resignation puts focus on web of politics & ‘bias’


‘No question of inclination’

The convention is that a DGP is usually appointed after a consultation between the UPSC and the state government, but in the case of Nagaland the two have been at odds for a while.

The matter of appointment of a Nagaland DGP has a long and convoluted history . It dates back to when the state government extended the tenure of the previous DGP T. John Longkumer last year even though he was due to retire, going against the recommendations of the UPSC. This matter had also reached Supreme Court.

In a 17 October 2022 order, the SC had asked the state government to give a list of names for the post of DGP. The state government had then recommended Rupin Sharma and Sunil Achaya. But subsequently, the MHA had noted that Achaya did not wish to go back from central deputation and the UPSC forwarded only Sharma’s name.

In the meantime, Longkumer quit the post and Sharma was appointed DGP earlier this month, but the Achaya issue has opened up a new front.

According to Prakash Singh, the fault in this case lies with the UPSC.

“UPSC has clearly defaulted in this particular matter. They have no business sending one name. This is something seriously wrong. UPSC is mandated to prepare a panel of three eligible officers,” he said.

Singh added that the process of empanelling officers should be confidential. “The question of inclination and disinclination does not arise,” he said. “In fact, the officer should not be even aware of whether or not his name is being considered for the empanelment.”

It should be noted that on 15 November 2022, the UPSC had written to the MHA that it should be empowered to relax the eligibility criterion of 30 years of service for DGPs to 25 years in states like Nagaland, Tripura, and Sikkim, among others, where there weren’t enough senior officers to form a three-member panel, the latest SC order notes.

The UPSC’s counsel also told the court that the MHA had agreed to this proposal. The SC has asked the MHA to place this communication on record in its order.

Room for manoeuvre?

In January 2014, the Department of Personnel and Training (DoPT) had issued a notification amending the AIS rules that “all appointments of cadre officers shall be made on the recommendation of the Civil Services Board”. Further, “all appointments to the cadre posts” would be made by the state government.

On the matter of deputation, the AIS rules, which apply to both IAS and IPS officers, state that a cadre officer may be deputed to the central government or another state “with the concurrence of the state governments concerned and the central government.” In the event of a dispute, the rules state “the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government”.

An officer’s concurrence for cadre postings is not mentioned in the rules.

When asked about this, an Indian Administrative Service (IAS) officer handling IPS postings in the MHA acknowledged that there is “no scope to express unwillingness”. “There is no such rule of choice for officers in terms of posting,” he said.

He added, however, that officers did have some room for manoeuvre.

“The officers may request the government to consider. In Achaya’s case, he did the same. The MHA approved, evaluating the seriousness of the post he was holding (in RAW under the cabinet secretariat),” the IAS officer said.

In its order this week, the Supreme Court had noted that if the Union government believed Achaya’s services were required under central deputation “in the interest of the nation”, it would not get in the way. However, it added that the officer’s saying “yes or no is irrelevant” and the MHA and Nagaland government needed to confer with each other.

Singh, too, was of the same opinion. “The empanelments, by rule, should be settled between the MHA and state. If the state wants, the officer has to comply. If MHA does not want to relieve the officer, then he may stay,” he said.

However, he added that the state should get the last word: “The state has parental authority as the cadre. If the state insists, the officer has to accept the posting.”

(Edited by Asavari Singh)


Also read: IPS in short supply for Centre — BJP-ruled states fail to hit central deputation quota


 

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