Amid the BJP and TMC indulging in a war of words over the Centre’s decision to recall West Bengal chief secretary Alapan Bandyopadhyay to Delhi, former top bureaucrats and legal experts say that the Centre may not be able to enforce its new order as the state government may refuse to release Bandyopadhyay.
West Bengal Chief Minister Mamata Banerjee and Bandyopadhyay were scheduled to attend a review meeting along with Prime Minister Narendra Modi to gauge the impact of cyclone Yaas in Bengal on Friday.
However, Banerjee and Bandyopadhyay did not attend the meeting but entered the room from where Modi was holding the meeting and submitted a report to him on the damages caused by the cyclone in the state, and sought a Rs 20,000 crore package for redevelopment of the worst-hit areas.
Soon after the incident, the Centre issued a notice recalling Bandyopadhyay to Delhi.
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 accept his central deputation on grounds that the state refused to relieve him.
"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 decision of the central government," the Indian Administrative Service (Cadre) Rules, 1954, mention.
It remains a grey area whether the central government's 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 conflict of interests.
Several retired and serving bureaucrats described it as an unprecedented situation.
However, Sircar and many 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 part of 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.
(With PTI inputs)