Thursday, February 9, 2023

Legal Slugfest Between IPS, CAPF Officers

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At a time when the country is faced with increasing security challenges, around 100 posts at the top levels in the Central Armed Police Forces (CAPFs) have been lying vacant for quite some time.

This is the first time when over 100 positions are vacant that includes the post of DG BSF too. Many officers are not able to join the forces in view of the Delhi High Court Order. Considering the current border scenario DG BSF Post can not be kept vacant.

This is thanks to the legal tussle over the deputation of IPS officers to the CAPFs, which is being opposed by the direct recruits (DRs) of these paramilitary forces.

The CAPFs include Border Security Force (BSF), Central Reserve Police Force (CRPF), Indo-Tibetan Border Police (ITBP), Sashastra Seema Bal (SSB) and Central Industrial Security Force (CISF).

The genesis of the legal battle is whether IPS officers should be deputed to these forces at the top level and whether the salaries and perks of the CAPF cadre officers should be at par with IPS officers on deputation. As per the prevailing practice, most of the officers in the CAPFs at the level of Deputy Inspector General (DIG) and above are IPS officers on deputation.

The IPS, one of the three All India Services, has a cadre strength which includes 40% Central Deputation Reserve. Currently, as per the Recruitment Rules (RRs) of various CAPFs, 20-25% of the posts at DIG level, 50% at IG level and 75% at ADG level are manned by IPS officers. The remaining posts are manned by Executive-Cadre, General Duty, directly-recruited CAPF officers (DRs) or officers promoted from the ranks. The DRs are recruited as Group-A officers through a combined examination and allocated to 05 different CAPFs.

The cadres of these forces, particularly the officers recruited directly, are unhappy with this practice as they are unable to head their force since the top posts are occupied by IPS officers on deputation. There is also a question about salaries and perks.

Now, the ball is in the court of law. The courts have to adjudicate whether the old practice should continue or be done away with.

What is the dispute?

The ITBP was the first to approach the court and get a temporary stay on the deputation of IPS officers. Later, over 383 CISF officers, 80 CRPF officers and 80 BSF officers moved the Delhi High Court praying for an end to the practice of deputation of IPS officers to their forces.

The Delhi High Court bench of Justice S Muralidhar and Justice Talwant Singh on November 18, 2019 put a temporary stay on the deputation of IPS officers to ITBP up to the Senior Administrative Grade (SAG) level after a group of cadre officers approached it.

The court also asked the government to inform it each time a position above the rank of DIG in the CRPF, CISF and BSF is to be filled by an IPS officer, until the matter is settled. 

The CAPF officers moved the Delhi High Court after a Supreme Court verdict in February 5, 2019, which granted CAPF officers Organised Group-A Service (OGAS) status, bringing them at par with officials from IAS, IPS, IRS and other central services.

In its order, the Supreme Court of India ruled that all CAPFs would be granted better pay benefits or Non-Functional Financial Upgradation (NFFU), and the status of Organised Group ‘A’ Services (OGAS). The Bench of Justices Rohinton Fali Nariman and M R Shah said the CAPF officers – from BSF, CRPF, SSB, ITBP, and CISF – will now be granted the NFFU and will be considered as organized group A Central Services.

The Non-Functional Financial Upgradation (NFFU) was introduced on the recommendation of the 6th Central Pay Commission with effect from January 1, 2006 in order to offset the financial loss for lesser promotional avenues in various Group-A services. 

As per the scheme, whenever an IAS officer gets empanelled at a particular rank at the Centre, all other Group-A service officers also get same level in pay after a period of two years on a non-functional basis. The benefit of NFFU was to be applicable only to officers of Organised Group-A Services (OGAS), and not to all Group-A Central Services.

It is argued that OGAS, as a sub-class within the class of Group-A Central Services, is a creation of executive orders, having no statutory basis like Group A, B, and C classification under CCSCCA Rules or the Recruitment Rules (RRs).

In an Office Memorandum of November 20, 2009, the DoPT listed out various attributes of an OGAS, wherein attribute no. 4 laid down that all vacancies above Junior Time Scale onto SAG (i.e. up to IG level) be filled by promotion from next lower grade. However, it was specified in the same OM that minor variations in these attributes were possible. A Group-A service was to be notified as OGAS by a cabinet decision.

The demand of DRs of CAPFs to be recognized as OGAS was rejected by the government on the grounds of maintaining operational efficiency of CAPFs since OGAS was suitable for civilian services having a cylindrical structure as opposed to CAPF which require a very vide base for operational reasons. Moreover, ranks of RRs of CAPFs provided for deputation of IPS officers in the rank of DIG and IG and therefore, the CAPFs, did not fulfil attribute no 4 of the OM of 2009 also, according to this argument.  

Some DRs from each of CAPFs filed a writ petition in the Delhi High Court praying that NFFU be granted to them since they are also OGASs as the cadre review has been regularly undertaken by DoPT from time to time.

The High Court held on September 3, 2015, that CAPFs be OGASs and eligible for grant of NFFU. This order was later upheld on February 5, 2019 by the Supreme Court. However, in a clarification petition, the Supreme Court clarified on October 18, 2019 that by grant of OGAS to CAPFs, the rights of IPS, if any, for their appointment on deputation on some of the posts cannot said to have affected. NFFU has since been granted to the CAPFs.

The Supreme Court had, however, ruled that the “grant of status of Group ‘A’ Central Services to RPF (Railway Police Force) shall not affect (the deputation of) the IPS”.

Since RPF doesn’t fall under the CAPFs, the petitioner CAPF officers assume that the Supreme Court order is only for the RPF and not for the CAPFs.

In October last year, the government had decided that Non Functional Financial Upgradation (NFFU) can’t be granted to Paramilitary cadre officers, dashing the hopes of about 6000 CAPF officers about raise in their salaries and perks given when a promotion isn’t granted due to lack of vacancies.

An Office Memorandum (OM) of the Department of Personnel and Training stated: “Since no IAS officer is posted in the central staffing scheme to a post in level 13-A of pay matrix, no NFFU can be granted to CAPF officers at level 13-A.” The memorandum directed CAPFs to release NFFU payment as mandated by the Supreme Court to those officers who are eligible under the Recruitment rules. This effectively meant granting benefits to those who joined post-2009 without the retrospective effect as sought by the CAPF cadre officials.

Citing this OM of the DOPT, the Union Home Ministry filed an application in the Supreme Court, seeking time to implement its February 2019 order. In the application, it stated that on September 25 representations from paramilitary on the issue was received and forwarded to the DOPT. The DOPT advice was received on September 27 and was currently under consideration for implementation.

The government’s decision was welcomed by the IPS officers but the CAPF officers publicly expressed their discontentment.

The IPS officers also filed a plea in the Delhi High Court, demanding that the petitions of the CAPFs to be dismissed on the grounds of concealment.

The petition said “as although Petitioners are relying on the judgment of the Hon’ble High Court of Delhi and Hon’ble Supreme Court of India but deliberately fails in giving details of the modification/clarification from the Hon’ble Supreme Court of India. The said clarification in judgment dated 05.02.2019 was sought to gain clarity on the right of IPS Officers for deputation. The Hon’ble Supreme Court vide order dated 18.10.2019 clarified that there was no observation made by the Court with respect to the right of the IPS officers for deputation.”

It quoted the SC order dated October 18, 2019: “…it is required to be noted that in Paragraph 26 in Judgment and Order sought to be clarified, it is specifically mentioned that by granting Organised Group ‘A’ Central Services to the RPF (it should be read as CAPF), the rights of the IPS, if any, for their appointment on deputation on some of the posts cannot be said to have affected…Still it is observed that while deciding these Appeals, this Court has made no observations with respect to the right of the IPS Officers for deputation, in terms of 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…”

It may be noted that a certain percentage of vacancies in CAPFs, particularly BSF, is reserved for ex-Servicemen. Since BSF’s responsibilities involve border guarding and counter terror operations, it’s always an advantage to induct Ex-servicemen and benefit from their combat experience. However, if the argument of CAPF is accepted for OGAS, even army personnel cannot get into CAPFs. 

The entry of officers in CAPFs from other forces is allowed for functional requirements and cannot be done away with on the basis of a rigid thought that the definition of OGAS doesn’t permit it. National security should be the only prime consideration. 

According to BSF acts and rules, the force has the right to claim cases in which BSF officers are involved. This means that the General security force court comprising of BSF officers becomes the sole agency to decide cases instead of the judicial system of the country. 

When such wide discretionary powers are given to them, it is only more essential to have an element in the force which has a deeper understanding of crime control, investigation, application of law, IPC, CrPC , prevention and detection of crime. 

Presence of Police officers who have spent a major part of their service in such activities, therefore, is beneficial to the organisation and their absence would make it weak. 

Other organized group A services do not have such judicial powers.This also supports the view that different OGAS can have differences in their recruitment rules.

Hence, as long as the legal battle continues, appointments at the top levels in the CAPFs will continue to be hampered. And it is likely that the vacancies, that are expected to accrue on this count, would affect the optimal functioning of these crucial forces responsible for critical security duties.

-India Legal Bureau

Pic Credit: PIB

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