The Central government’s recent tussle with West Bengal over the decision to place the services of the chief secretary of West Bengal with the Government of India, with immediate effect, has stirred a political hornet’s nest. Beyond the din, the Centre’s decision raises some very troubling legal questions that appear to strike at the foundations of cooperative federalism and the independence of civil servants.
With the chief minister of West Bengal, Mamata Banerjee, barely having assumed her third term, the state found itself ravaged by India’s second COVID-19 wave and the destructive Cyclone Yaas. The chief secretary of West Bengal, Alapan Bandhopadhyay, was slated to retire on the May 31, 2021. Given his experience in handling the COVID-19 crisis, the state of West Bengal had requested an extension of his term. This request, according to the chief minister, had been acceded to on the May 24, 2021 with a three-month extension being approved by the Centre.
However, in a complete renege, on May 28, 2021 an order was issued to the chief secretary, West Bengal, informing him that the Appointments Committee of the Cabinet has approved the placement of the officer with the Government of India in terms of Rule 6(1) of the Indian Administrative Service (Cadre) Rules, 1954 with immediate effect. The officer was asked to report to the Department of Personnel and Training (DoPT) by 10 am on May 31, 2021.
West Bengal chief minister Mamata Banerjee and former chief secretary Alapan Bandyopadhyay in the state’s cyclone control room. Photo: Twitter
From several media reports, it appears that the decision to recall the officer closely followed a meeting held on May 28, 2021 between the prime minister and the state administration, for the purposes of reviewing the post-cyclone situation in West Bengal. In this meeting, the Bengal chief minister reportedly made the prime minister wait for 30 minutes and then curtailed her meeting with the prime minister due to prior commitments. The chief minister’s response was that she took the prime minister’s consent before leaving.
While the officer, as per the Centre’s order of 28 May was directed to report by May 31, 2021, the West Bengal government did not relieve the officer. The chief minister wrote a letter that explained these actions to the prime minister, protesting against what she termed as a ‘unilateral decision’ which was also ‘historically unprecedented and wholly unconstitutional’. The next twist in the saga saw the officer opting to retire and being appointed an advisor to the chief minister. By late night of May 31, the Centre had predictably initiated action against the officer, now caught in the crossfire, by issuing a show cause notice.
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Undermining federalism
In this backdrop, what are the legal implications of this whole episode? The order being passed without following the procedure prescribed by the very Rule it was passed under, is the first legal infirmity one observes. Rule 6 of the Indian Administrative Service (Cadre) 1954 Rules, under which the officer has been recalled, requires the concurrence of the state government in matters of deputation. It states that:
“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…”.
Thus, seeking the concurrence of the state government before taking this step is a prerequisite under the Rule. The rule also has a proviso which states that in the event of a disagreement the matter shall be decided by the Central government. However, it is hard to foresee a disagreement if the concurrence of the state government was never even sought in the first place.
This means, that without following the procedure prescribed under the Rule, the Central government assumed a lack of concurrence, and proceeded to pass an order of deputation. This course of action makes the sub-section meaningless and puts the cart of the proviso before the horse of the sub-section. Placed with the course of events it almost seems that the order of deputation was retaliatory and motivated by extraneous considerations.
The whole exercise makes for extremely uncooperative federalism of the kind that has no place in our constitutional scheme. The officer was slated to retire on the May 31, 2021 and was given a brief extension after a consultative process. If the raison-d’être of the extension was the COVID-19 crisis in West Bengal and his experience in managing it, there was simply no material change in circumstances to warrant the deputation order. Even from the material available on record, there seems to be no particular need for the officer at the central level for a specific post. The order merely asks the officer to report to the DoPT in New Delhi by 10 am on May 31.
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Does this mean that any officer of the Indian Administrative Service can now be directed to proceed on central deputation ‘with immediate effect’, without even an attempt at obtaining the concurrence of the state government not to talk of the officer’s consent?
The Supreme Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1 observed that “states have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre”. In the same case the court observed the federal principle to be a part of the basic structure of the Constitution that is immune from even constitutional amendment. In Swaraj Abhiyan (V) v. Union of India, (2018) 12 SCC 170 the Supreme Court described cooperative federalism as a “cherished constitutional goal”.
In a country where cooperative federalism is ingrained in the constitutional scheme, a unilateral decision by the Central government to recall the chief secretary of a state during a pandemic seriously undermines federalism. There seems to have been no reason for such an order being passed, other than an alleged ‘protocol violation’ by a chief minister in a review meeting with the prime minister. The manner, the haste, the infirmity and the timing of the order reeks of a colourable exercise of power by the Central government.
Lastly, it may be worth asking what message this sends to the officers of the civil services, whose job it is to serve the state administration while being politically neutral.
A punitive deputation order seems to have been issued in this case. This, followed up with threats of disciplinary action against the officer if he does not immediately report to New Delhi only paints a picture of an individual officer becoming collateral damage in a political dispute. How would this impact the morale of civil servants working across all states? More importantly how will this affect the independent functioning of the administrative service and the dispassionate and neutral discharge of duties by chief secretaries?
The issuance of unilateral deputation orders sets the stage for chief secretaries to pick sides between the state and the Centre. These are all very worrying signs for our republic already going through one of the most challenging times in its history.
Srishti Agnihotri is an advocate on record in the Supreme Court of India.