A vitriolic debate between members of Central Armed Police Force [ hereinafter “CAPF”] and the members of Indian Police Service [ hereinafter “IPS”] has generated a lot of steam in the blog world for last one year. Though amusing, at the same time unfortunate, to see two bulwarks of the internal security infrastructure of the Nation fighting out in a dirty manner, the core issue has great legal implications on service matter laws which needs to be understood very minutely. There is an inherent difficulty in understanding as well as interpreting matters concerning service laws, because the service associations tend to act like a trade union in guarding their service interests and rightly so. Hence, without trying to court any further controversy, this blog tries to understand the view of the Honorable Supreme Court in this matter.
The police infrastructure is peculiar in India. Police is a state subject as per the VII Schedule of the constitution, that is every state has its own police force, causes the recruitment to it at various ranks from Constable to Deputy Superintendent of Police. Then, there is an All India Service namely Indian Police Service, as per Article 312 of the Constitution. The officers of the IPS are selected by Union Public Service Commission [ hereinafter “UPSC”] in a common civil service examination and are allotted to different state cadres. They occupy the middle to higher management ranks in police organization of a state. There are two way of entering into IPS- Firstly, direct recruitment through Civil Services Examination conducted by UPSC and secondly promoted from state police ranks. Apart from, the state police organizations, there are a number Central Police Organizations such as CBI, NIA, NCRB, BPRD, IB etc. which are specialized bodies to carry out special policing tasks. The supervisory posts are filled from deputation from the members of IPS. A third kind of police organization are the CAPF. These are the paramilitary forces of the Union which were originally tasked with very specific jobs. For example, the Crown Reserve Police Force, later rechristened as Central Reserve Police Force [ hereinafter “CRPF”] was formed to assist the state police in dealing with serious law and order issues; the Border Security Force [ hereinafter “BSF”] was formed to guard the borders of this country; the Indo Tibetan Police Force [ hereinafter “ITBP”] was formed to guard the Indo-Tibetan and Chinese borders in the North East ; the Central Industrial Security Force [ hereinafter “CISF”] was formed to guard the various important industrial establishments; Railway Protection Force [ hereinafter “RPF”] was formed for the safety of the Railway infrastructure and so on. All these forces, except RPF, recruit their Group A officers through a combined armed police recruitment examination conducted by UPSC. The Group A officers occupy the cutting age positions such as Assistant Commandant, Deputy Commandant, Commandant and so on. As per the recruitment rules of various CAPF, certain posts at various rank are reserved for deputation from the IPS. There are reservations at the level of Commandant, Deputy Inspector General [ hereinafter “DIG”], Inspector General [ hereinafter “IG”] and Additional Director General [ hereinafter “ADG”]. All the posts of the head of the force are reserved for IPS.
Over the period, the each of the CAPFs has expanded multiple times to become a mammoth organization. This has led to stagnation of the cadre officers of CAPF at the higher level. Hence, since long (may be for more than a decade) a simmering discontent is brewing between the officers of the CAPF and the officers belonging to IPS. One argument against the IPS is that the officers of IPS parachute to the force at higher management level without any experience of the rank and file and occupy cozy positions whereas the cadre officers toil in the lower/cutting edge positions. The general rebuttal by the officers of IPS is that they are not averse to go on deputation to junior ranks, but there is a huge vacancy in the IPS cadre and states are not allowing for central deputation. This being the position for quite some time, in last few years’ certain developments have escalated the rivalry to a long legal battle.
A chronology of legal battles
The issues started to escalate in the aftermath of sixth Central Pay Commission [ hereinafter “CPC”] recommendation. The Sixth CPC had introduced a concept namely Non-Functional Financial Upgradation [ commonly referred as “NFU”] for various services for benefit of the members of that service. According to this concept, any member of a service should not suffer financial loss because of non-availability of enough promotional posts in their cadre vis-à-vis other equivalent services. After much deliberation of the recommendations of the Sixth CPC, the Central Government decided that, when a member of Indian Administrative Service [ hereinafter “IAS”] was promoted to a higher grade, the member of other Central Group A Services two years senior would automatically receive the financial benefits of that higher grade, even if they are not physically promoted. Later on, this provision was extended to All India Services also. As per the circular of Department of Personnel and Training [ hereinafter “DoPT”], Government of India, NFU provision is applicable to the All India Services and other Organized Group A services [ hereinafter “OGAS”]. By this circular, the Government of India has created a controversy out of nowhere by suffixing the word “organized”.
The concept of “organized” Group A services are found mentions in various office memorandum of DoPT from time to time earlier also. At various times, the DoPT had been flooded with letters from various Central Armed Police Forces about whether their service was an organized group A service or not. DoPT, however, had been shy of defining what an organized service means, but time to time declared in office memorandums about the characteristics of an organized service. For example, in a 2009 Office Memorandum the DoPT states the following attributes of an Organized Group A services.
- The highest cadre post in such service is not below the rank of Senior Administrative Grade (i.e. erstwhile grade pay of 10000)
- Such services must be having standard grades namely, Junior Time Scale[ hereinafter “JTS”] (erstwhile Grade pay of 5400), Senior Time Scale [ hereinafter “STS”](erstwhile grade pay of 6600), Junior Administrative Grade [ hereinafter “JAG”](erstwhile pay grade of 7600), Non-functional Senior Grade (Erstwhile grade pay of 8700) and Senior Administrative Grade [ hereinafter SAG”](erstwhile Grade pay of 10000)
- At least 50% vacancy in JTS are to be filled up direct recruitment
- All the vacancies from JTS up to SAG are to be filled up by promotion from lower grade
- The cadre posts of an organized Group A services belong to that service alone.
However, one should note that there is no reference to the word “organized group A services” in any of the statues. As per the Rule 5 of CCS-CCA rules, 1965 there are central services of Group A, Group B, Group C and Group D category. So, is there any difference between Group A central services and Organized Group A services of central government? Does that mean, any service fulfilling the above criteria will automatically become eligible for organized Group A service?
In the absence of any clear answer, various services have approached the court of law, for deciding the fact. For example, in Harnanda & Ors v. Union of India (WP no 6314/2012), the Delhi High Court had declared that RPF be granted the benefits of Organized service. Similarly, ruling in favor of Mizoram Engineering Service, the Supreme Court in State of Mizoram v. Mizoram Engineering Services Association [ (2004) 6 SCC 218] has granted the benefits of organized service to the Mizoram Engineering Services and iterated that there is hardly any difference between organized and unorganized services. Referring to the above mentioned judgments and relying upon the concept of new doctrine of reasonable classification, Delhi High court in G.J. Singh v. Union of India (WP (c ) 153/2013) has granted officers in the rank from JTS to SAG in Central Armed Police Forces the benefits of organized group A service.
Feeling dissatisfied with the order of Delhi High Court in Hardananda Case and G.J. Singh case the Union of India and other parties had approached the Apex Court with appeal petition and plethora of special leave petitions which were clubbed together in Civil Appeal No. 1474/2019 and decided by a division bench of Supreme Court. The Supreme Court held that, the CAPFs constitute an Organized Group A service and the CAPF are entitled to the benefits of NFU. In the operative part of the judgement, the Supreme Court also held that rights of IPS, if any, for their appointment on deputation on some of the posts in RPF cannot be said to have been affected and merely because some posts in the RPF might have been required to be filled in by way of deputation. After this judgement, a clarification was sought by Central IPS Association vide M.A.No. 774/2019 in SLP cc No 5738/2016 about the judgement with regards to the right of IPS officers in the event of CAPF receiving organized Group A service status. The court took the view that there was no clarification required to be sought with respect of IPS officers to go on deputation to some of the posts in the CAPF. It clarified that, by granting organized Group A status to the CAPF, the court has made no observation regarding the right of IPS officers, in terms of recruitments rules, to occupy posts in CAPF in deputation. Thus, rests the debate! At least from the point of view of Supreme Court.
How the controversy still brews
However, from CAPF point of view the issue is hardly settled. The clarification, according to some officers of CAPF, is a shot in their arms. They say, there is a distinction between the rights of IPS officer to deputation to the CAPF in the pre-organized Group A service regime and Organized Group A Service regime. That is, before the CAPF were given the OGAS status, the IPS officer could fill the vacancies in the force at JTS to SAG rank and beyond. However, after the OGAS status was conferred, this right has been narrowed down. Their right needs to be evaluated only after all features of OGAS status is considered. To simplify, all the vacancy will be filled by the cadre officer from JTS to SAG, as per the characteristics of OGAS as per the Office Memorandum of DoPT. So, IPS officers can claim to deputation to the force to the posts beyond SAG. So, they are now in a level playing field with the cadre officers who also have similar claim to those higher management posts.
On the other hand, the IPS officers say their rights in both pre-OGAS regime and OGAS regime remains unchanged, which means their right to deputation is not affected at any level. It is a strange paradox that, both parties are claiming their victory!
What might be the actual position
Clearly, both parties cannot have interpretations that suits their interests. So, what might be the actual legal position? The rule 6(1) of IPS Cadre Rules, 1954 provides for the deputation of the IPS officer to the central Government as well as other organizations. Further, in IPS tenure policy of 2010 issued by way of Office Memorandum by the Ministry of Home Affairs says, cardinal principle of Article 312 and the IPS cadre rules is that IPS officers will be available to serve on central deputation for a stipulated period of time. It loosely confers right on a member for IPS to opt for deputation. Hence, right to opt for deputation has constitutional sanction as per Article 312, as understood from the said Office Memorandum. As per the recruitment rules, every state cadre of 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 Central Government. That is, during recruitment itself, central deputation quota of IPS is taken care of. So, if at any point of time the right to deputation is infringed, the cadre rules will be violated, which is against the Supreme Court observation in the judgement. Finally, the tenure policy Office Memorandum provides the minimum length of service in each rank to be eligible for deputation. That, means a member of IPS has the right to seek deputation in the rank from JTS to HAG grades. So, the Central IPS Association’s case is well made out in view of the Supreme Court Judgement, the IPS tenure policy and the IPS recruitment rules.
But, the argument of the CAPF officers is also worth mentioning. Admittedly, the Court has granted OGAS status to the CAPF. One the most important characteristics of the OGAS is that the cadre is closed in nature. So, the CAPF officers argue that, all the posts between JTS to SAG should be filled by promotion from among the cadre officers. On this point, the argument of CAPF officers enjoys weightage. So, what is the actual position ?
The Supreme Court judgement uphold the Delhi High Court Judgement on G.J. Singh and Hardanand case. Both the cases were decided on the point of grant of non-functional upgradation, a financial benefit and nothing more than that, to the CAPF officers. As, the sixth Pay commission had mandated that NFU was applicable only to the Organized Group A services, the Court has declared the CAPF to be Organized Group A services to the extent of getting NFU. The reasoning of Supreme Court in State of Mizoram v Mizoram engineering Service Associationis very important in this context. The Supreme Court in granting Non Functional Financial Upgradation to members of Mizoram Engineering Service had said, deciding a service to be an organized or not was not the prerogative of the embers of the service. And if the policy makers had failed to designate it to be an organized service, then that should not construe to be an impediment on the rights of the members of the service. Having said so, the Supreme Court has downplayed the importance of Organized Group A service status. This status is only as good for being eligible for enjoying the benefits of NFU and cannot be said to have any other significance.
Besides, there is no disagreement with the fact that one of the characteristics of the organized Group A services is that it is a closed cadre, as this fact is well settled in the Office Memorandum of DoPT. Contrast this with the Recruitment Rules of any CAPF, for example BSF. The Recruitment Rules- 2010 of BSF says 15% at the level of DIG, 50% posts at the level of IG, 75% posts at the level of ADG and the post of DG is to be filled from deputation from IPS. The case is similar in other CAPF also. So, one is faced with a problem as to which enjoys precedence, a mere office memorandum or Recruitment Rule which is duly gazette notified? There is a demand on the part of the CAPF officers to amend the recruitment rules because the court has granted them Organized service status. Characteristics of a service emerges from the service conditions and not the other way around; that is, to comply with the characteristics norms the cadre rules should not be amended. When DoPT issued the Office Memorandum, it had provided the characteristics of an Organized Group A service after studying the existing such services. It means, if DoPT were to issue another Office Memorandum today about character of an Organized Group A Service, it might not include the concept of “close cadre” as a characteristics, especially because a large number of services (CAPFs) having a non-closed cadre have been given the Organized Group A Service status by the Apex Court. Granting OGAS does not require the amendment of cadre rules.
To briefly summarize, the legal battle has resulted in –
- Granting NFU status to CAPF, with the issues about pay matrix cell 13A not decided
- Designating the CAPF as Organized Group A Services.
- The right of deputation of IPS officer to CAPF are to be guided by their recruitment rules
This is a classic win-win situation. The CAPF officers become eligible for Non Functional Upgradation, which will be a succor to the cadre officers in view of huge stagnation in the career advancement. The IPS officers are still eligible to go on deputation as per the Recruitment Rules of CAPF. Only, vested interests are crying foul over this development