Why SP's stance on Durga Shakti Nagpal, IAS is unconstitutional

[caption id=“attachment_1012721” align=“alignleft” width=“380”]  The high handedness of the SP government in this case has been shocking: AFP[/caption] It’s turning out to be absurd politics from the Samajwadi Party. The Akhilesh Yadav government which swore by the Constitution of India while assuming office threatens to throw out a system created by that very Constitution to the dustbin. This is just to protect the sand mafia and consolidate the party’s support base in a particular community ahead of the parliamentary election. “If the Centre intervenes in the suspension of Durga Shakti Nagpal, then the UP government will write to it saying the state does not need the services of IAS officers and it can withdraw all IAS officers from UP. We will run the state administration with our own officers.” This was the threat made by senior Samajwadi Party leader Ramgopal Yadav, who also happens to be party chief Mulayam Singh Yadav’s brother. By “our own officers” Ramgopal means PCS officers. This implicitly means that he considers IAS officers, or at least some of them, as not his own and thus a hostile group because they do not follow the whims of the state government. Ramgopal Yadav treats the rationale of the creation of the All India Services, notably the IAS and IPS, with disdain. No wonder Narendra Bhati, the former Samajwadi Party MLA who lost the last parliamentary elections from Noida but still enjoys a Cabinet minister’s status, bragged about punching a hole in what Sardar Patel had visualized to be the “steel frame” in a mere 41 minutes. All that it cost him was two phone calls, one to Mulayam and the other to Akhilesh. UP has the biggest cadre strength of the IAS. The civil list count of serving officers starts from Ajit Kumar Seth, a 1974 batch officer and current Union cabinet secretary, and the number goes down to 354 to the last probationer of the 2012 batch, besides 53-odd promotee PCS officers to superior ranks. Yadav’s “own” state officers will have great fun running the state if Akhilesh government actually delivers on its threat. They have been working under the command of IAS officers since Independence and have gradually lost decision- and policy-making capacity. Akhilesh is now playing an affectionate patron to the IAS. He claims he has the right to reprimand an errant officer. Mulayam Singh Yadav has termed Durga Nagpal’s suspension as justified. The state government’s belated charge sheet, late on Sunday, a full one week after she was suspended, on the eve of opening of the Monsoon session of Parliament and after receiving three letters from the Centre clearly smacks of more than simple administrative procedure. Article 312 of Constitution deals with All India Services. It says “S_ervices known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article_.” Though the IAS officers are recruited by the Union Public Service Commission and are appointed by the seal of the President, their services belong to the states, to the cadre assigned. They get a posting outside of that state only on deputation. Sanjeev Chopra, a member of the ExeCom of the Central IAS Association, wrote boldly on the subject in an article in the Times of India, “Over the years, transfer and compulsory waiting were accepted as the price paid for taking a position, but certain ground rules were not breached. Young officers were let off with a stern warning or counselling from the DM; the political executive underplayed the event and it was called a routine administrative affair.” “This time, the plot has changed. Not only is the state’s ruling party gloating over its actions, its ministers and minions are literally baying for blood. When the DM gave a factual report that the SDM was not on the site when the demolition took place, he was also threatened with suspension. When the DoPT Minister, V Narayanasamy, said that the Centre had sought a report, the state government retorted by saying that they could take her back,” Chopra said. Look at the legal and procedural issues that the case raises. If, as the government says, Durga was suspended for the demolition, the order of the Supreme Court is abundantly clear in the Special Leave to Appeal (Civil) No.8519/2006: A_s an interim measure, we direct that henceforth no unauthorized construction shall be carried out or permitted in the name of temple, church, mosque or gurdwara etc. on public streets, public parks or other public places, etc In order to ensure compliance of our directions, we direct all the district collectors and magistrates /deputy commissioners in charge of the districts to ensure that there is total compliance of the order passed by us. They are directed to submit a report within four weeks to the concerned chief secretaries or the administrators of the union territories, who in turn will send a report to this court within eight weeks from today._ In fact, not doing so would have been very serious contempt of the Supreme Court. The UP government has also reiterated this position in its communication to its officers. As to whether an action may lead to a law-and-order issue, including communal tension, it is clear that the decision lies with the executive magistrate, not the political executive," Chopra says. It’s a point endorsed by former Cabinet Secretary Naresh Chandra. The Congress-led UPA does not want to take the fight too far even as UPA chairperson Sonia Gandhi has written a letter to the prime minister asking for fair treatment for Durga. Since then there has been a flurry of activity in the Congress party and in the UPA government. The environment ministry is sending its teams to Noida to study how the sand mafia could have caused environmental degradation, the DoPT is dispatching reminders to the UP government and so on. However, the Congress would not like to go beyond these symbolic steps and turn this into a war with the Samajwadi Party, which supports the UPA from outside. The Congress needs SP’s support on its populist flagship project, the Food Security Bill.