ball citing lack of consultation: Experts (Eds : Adding fresh matter) Kolkata/New Delhi, May 30 (PTI) Former top bureaucrats and legal experts believe that the Central government's order recalling West Bengal Chief Secretary Alapan Bandyopadhyay to Delhi, on the day he was slated to retire, may be one which will be hard to enforce as the state government may refuse to release him.
Official sources in Delhi said in such a case, the Chief Secretary may find himself in a piquant situation as administrative action may be taken against him if he refuses to take up his central deputation on grounds that the state refused to relieve him.
The transfer order came within hours after a political row erupted on Friday over West Bengal Chief Minister Mamata Banerjee curtailing her meeting with Prime Minister Narendra Modi on the post-cyclone situation in her state to just 15 minutes, and within days of another central order extending Bandyopadhyay's tenure by three months to help combat the Covid pandemic in the state.
'The state may well send a politely drafted reply to the order pointing out the All-India Service rules which govern such transfers,' said Jawhar Sircar, a former secretary to the Government of India.
According to rule 6(1) of the AIS on deputation of all India service officers, an officer on the rolls of a certain state may be deputed to the Centre or another state or a PSU with the concurrence of the concerned state.
'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 decisionof the central government,' the Indian Administrative Service (Cadre) Rules, 1954, mention.
It remains a grey area whether the central governments writ will prevail given that no consent was sought from West Bengal government, though the thumb rule in Centre-state relations is that the Centre usually prevails in case of a conflict of interests.
Several retired and serving bureaucrats described it as unprecedented situation.
However, Sircar and several other senior bureaucrats also speculated that Bandopadhyay may choose to retire as he is supposed to in the normal course on May 31, instead of accepting his extension and be appointed an advisor to the state Government.
The chief minister on Saturday had appealed to 'PM Modi to end political vendetta, withdraw order recalling Chief Secretary Alapan Bandopadhyay, and allow him to work for the Covid-infected'.
BJP MLA and Leader of opposition in the West Bengal Assembly, Suvendu Adhikari, however, alleged at a virtual press conference that the chief secretary had broken protocol at the review meeting, and as per the Constitution, the transfer was fair.
Sircar said the West Bengal government could also seek legal remedies through the Central Administrative Tribunal or the High Court, though the Centre was believed to have filed caveats in both the platforms.
'Aside from politics, the order issued by the Centre does not stand the test of law as the central government did not obtain the state's approval or the officer's willingness for central deputation,' said a former secretary ranking officer from the Indian Audit and Accounts Service.
Earlier, similar unilateral orders transferring three IPS officers from West Bengal were not accepted by the state government. A few years ago, Tamil Nadu had also similarly refused to relieve its Director General of Police when ordered to report to Delhi.
Another former chief secretary of West Bengal said 'the operation of any proviso to a rule (which allows central directives to prevail) happens only after the substantive partof the rule is given effect to, which is prior concurrence before issuance of an order', and added 'these procedures have been clearly laid down. Any departure from this practice needs to be explained'.
Questioning the propriety of the decision to transfer Bandyopadhyay, senior advocate Arunabha Ghosh said that if the chief minister decides not to give the release order immediately, it would create a legal complication.
Ghosh said the chief secretary is under the direct control of the CM.
'The Centre can do it (transfer Bandyopadhyay) under the rule, but there is timing... Will an Army general be removed in the middle of a war?' he said. PTI JRC SCH AMR SK RBT JRC JRC