Thursday, 19 May, 2022
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Centre’s Bengal move can make CMs lose faith in AIS, rely more on state services

Law is clear that Modi govt shouldn't have treated former Bengal chief secretary Alapan Bandyopadhyay as a central services officer to be transferred at will.

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Much has already been said about the recent show cause notice sent to West Bengal’s former chief secretary Alapan Bandyopadhyay for “skipping” the meeting convened by Prime Minister Narendra Modi to review the Cyclone Yaas situation in the state. As a consequence, a day before the official was to retire and start his three-month extension period that the Centre had granted to him earlier, he was given an order of “deputation” under Rule 6(1) of the IAS (Cadre) Rules, 1954, and asked to report to New Delhi.

Lines are clearly drawn between those who believe the former chief secretary had overstepped the line of propriety and those who denounce the over-reach by the central government. Be that as it may, there is a much larger issue here with ramifications on the constitutional design of things.

There is a definite distinction between the All India Services (AIS) and the central services. Whereas the latter are directly under the control of the central government and whose officers can be posted in any state (such as the Income Tax and the Excise & Customs), the AIS have a unique and well-thought-out design that requires them to serve under two distinct jurisdictions — that of the state on whose cadre they are borne and the central government where they serve on “deputation”.

Also read: PM has no individual powers under NDMA. Notice to Alapan Bandyopadhyay questionable

A common service not birthed by Constitution

Contrary to popular belief, the AIS and the central services were not the product of either the Constitution or the brainchild of Sardar Vallabhbhai Patel. After the enactment of the Government of India Act, 1919, the Imperial Services were split into the All India Services and the Central Services. The Imperial Civil Service (ICS) and the Imperial Police (IP) constituted the AIS whereas Income Tax, Customs, etc. were part of the Central Services. The distinction was necessary because even though the Governor Generals exercised unbridled executive powers, areas directly under the rule of the British were organised as Presidencies (Madras, Calcutta, Bombay), Provinces (Central Province, United Province, etc.) and Agencies (NEFA, NWFPA, etc.). The AIS officers were assigned to one of these areas in which they served mostly throughout their careers, learning local languages, customs, geography, etc. which gave them deep insight in dealing with peculiar conditions prevailing in those areas. While doing so, their services were controlled by the governors of the areas where they worked. Periodically, they would be assigned to work in the central government and could also end up becoming secretaries to the Government of India, in which case their services were controlled by the GoI.

In 1946, the Viceroy’s Executive Council, with Jawaharlal Nehru as its vice chairman and India’s de facto PM, decided to form the Indian Administrative Service (IAS), based on the ICS, and the Indian Police Service (IPS), based on the IP. While piloting the proposal, Sardar Patel said in the Constituent Assembly, “There is no alternative to this administrative system… If you do not adopt this course, then do not follow the present Constitution. … these people are the instrument. Remove them and I see nothing but a picture of chaos all over the country.” While framing the Constitution after independence, the founders did not debate very much on the need of the AIS and gave effect to it by inserting Article 312. The Article reads as follows:

(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services (including an all India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.”

The AIS could be constituted, as a service common to the Union and the states, because the Council of States (representing the states’ interests) declared through a resolution supported by two-thirds of the members present and voting, that it is necessary and expedient in the national interest to create one or more AIS. The central government did not constitute the AIS to serve the central government. Instead, Parliament passed a law constituting AIS after an overwhelming number of states had voted in its favour, to serve both the Centre and the states. The will of the states in formation was considered paramount.

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An IAS cadre for the states

Subsequently, The All India Services Act, 1951  created two AIS, namely the  IAS and the IPS. The Indian Forest Service was added in 1966. The Act is very specific about the nature and design of the AIS. In Section 2, it states: “In this Act, the expression “an All-India Service” means the service known as the IAS or the service known as the IPS…” Section 3 prescribes regulation of recruitment and conditions of service. It states: “(1) The Central Government may, after consultation with the Governments of the States concerned (including the State of Jammu and Kashmir), make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All-India Service.” Consultation with the states was mandatory before framing the rules for recruitment and those governing the conditions of service. In my opinion, such a consultation would also be necessary every time the AIS service rules are amended.

In Section 3, how the constitution of cadres would be done is prescribed. It is mandated that “there shall be constituted for each State or group of States an Indian Administrative Service Cadre… The Cadre so constituted for a State or a group of States is hereinafter referred to as a ‘State Cadre’ or, as the case may be, a ‘Joint Cadre’. It is further stated that “The Central Government may, with the concurrence of the State Government concerned, transfer a cadre officer from one cadre to another cadre.” The word used is concurrence.

Rule 6, under which the orders for the transfer of the former Bengal chief secretary were issued, is unambiguous. It states how “deputation” of cadre officers can be done. The rule reads as follows: “6(1) A cadre officer may, with the concurrence of the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government. Provided that in case of any disagreement, 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.”

Clearly, cadre officers is the reference to IAS officers assigned to serve in a state cadre who can be sent on “deputation” from the state cadre. Therefore, this is not a routine transfer of an officer under the jurisdiction of the central government. There is also a requirement that the Centre seeks the concurrence of the concerned state government whose cadre the officer belongs to. It must be noted that the word used is “concurrence” and not “consultation”. The rule does provide the final authority to the Centre in case of a difference of opinion and the state governments would comply, but only after the process has been completed. Incidentally, this last proviso arming the central government with overriding powers was inserted only as late as 1969 and was not in the original design of the Act.

Also read: BJP’s undiluted power at the Centre has weakened the bargaining position of regional parties

Centre’s overriding powers: when and how

However, could the central government ask for the services of the officer from the state cadre without assigning any reason? Several judgments of the higher judicial courts have held that, while exercising its powers, the competent authority must show “application of mind”. In administrative parlance, this would mean that the central government must show adequate and compelling reasons to require the services of an officer to merit over-ruling the objections of the state government. Therefore, while the chief secretary “can’t be working like a personal staff” of the chief minister, it is also true that s/he is not a creature of the Centre and cannot be treated as a central services officer to be transferred at will by the latter.

While testing the decision of the central government against the provisions of law, there’s a much bigger issue at stake here. The founders of the Constitution had injected a major role of national integration into the design of the AIS. Therefore, only around 50 per cent of the vacancies of the direct recruit officers are filled by officers from their home states. The remaining are “outsiders” from different states. It is expected that while the insider candidates will bring the depth of local knowledge but may be swayed by parochial consideration, a balance would be maintained due to the “national perspective” of the “outsider” officers. This has actually worked quite well since Independence and in times of crisis, the officers have been able to persuade the state political leadership of the need for a national perspective in dealing with issues.

As the states have been equal partners with the central government in the formation and management of the AIS, the service has, by and large, served the people well. If the Centre acts arbitrarily against state cadre IAS officers, treating them as “central services” officers, gradually the states may start losing faith in the AIS officers and begin to depend more and more on the officers from the state services, at the cost of national perspective in dealing with critical matters.

We have seen such an experimentation by the Mayawati government in Uttar Pradesh, when she created the post of the cabinet secretary, which was to be in the administrative hierarchy higher than the post of the chief secretary. Thankfully, good sense prevailed, after a slew of PILs were filed in the Allahabad High Court and she re-established the primacy of the chief secretary as the administrative head of the secretariat and removed the cabinet secretary from that position. But more creative and sophisticated mechanisms to sideline the IAS in the future cannot be ruled out. This will be a body blow to the delicate and complex design of the AIS, which has served India well until now.

Dr Arvind Mayaram is a former finance secretary, Government of India. Views are personal. 

(Edited by Prashant Dixit)

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