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Supreme Court of India
Union Of India vs R Thiyagarajan on 3 April, 2020Author: Deepak Gupta
Bench: L. Nageswara Rao, Deepak Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2229 OF 2020
(@ SLP (C) NO.18853 OF 2017)
UNION OF INDIA & ORS. …APPELLANT(S)
Versus
R. THIYAGARAJAN …RESPONDENT(S)
JUDGMENT
Deepak Gupta, J.
Leave granted.
2. The respondent is employed with the Central Industrial
Security Force (CISF). He was recruited as a constable in the
year 1999.
3. The appellant enacted the Disaster Management Act, 2005
(for short ‘the Act’) and the same was notified on 26.12.2005.
Section 44 of the Act provides that a National Disaster Response
Signature Not Verified
Digitally signed by
Force (NDRF) shall be constituted for the purpose of specialised
ASHA SUNDRIYAL
Date: 2020.04.03
15:27:08 IST
Reason:
response to threatening disaster situations or disasters. The
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Ministry of Home Affairs approved the constitution of the NDRF
on 19.01.2006. The Disaster Management (National Disaster
Response Force) Rules, 2008 (for short ‘the Rules’) were made by
the Central Government under Section 75 of the Act and notified
on 13.02.2008. The Rules were, in fact, enforced with effect from
11.09.2009.
4. The NDRF was initially constituted by drawing Battalions
from the Central Police Forces, Border Security Force (BSF),
Central Railway Police Force (CRPF), Indo Tibetan Border Police
(ITBP) and Central Industrial Security Force (CISF). The entire
Battalions were sent to the Director General, NDRF. Prior to the
enforcement of the Rules i.e. on 11.09.2009, the personnel
belonging to the various Central Para Military Forces continued
to remain under the control and command of their respective
police forces. They also continued to receive their pay and
allowances from their parent organisation. After the Rules were
enforced on 11.09.2009, the Battalions of the Central Para
Military Forces which were sent to the NDRF were renamed as
NDRF Battalions and their control has from that date vested with
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the NDRF. They also drew their pay and allowances from
11.09.2009 from the NDRF.
5. On 13.01.2010, an office memorandum was issued by the
Director General, NDRF which provided that the Battalions of the
NDRF had been renamed and renumbered in the NDRF to give
the force a separate identity. The tenure of the respondent who
had been sent to the NDRF on 18.04.2008 came to an end on
07.10.2011 when he was relieved of his duties in NDRF and
repatriated to the CISF. He submitted a representation to the
Director General, NDRF requesting that he be granted 10%
deputation allowance and 25% special allowance with effect from
18.04.2008. Vide communication dated 23.07.2011 the
respondent was informed that his case for grant of deputation
allowance had been taken up with the Ministry of Home Affairs.
On 31.07.2011, the respondent filed a writ petition in the High
Court of Madras in which the prayer was that the respondent in
the writ petition i.e. Union of India, Director General, NDRF and
Director General, CISF be directed to pass orders on his
representation dated 20.07.2020.
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6. The appellant and other respondents in the writ petition
contested the writ petition and claimed that the writ petitioner is
not entitled to grant of any deputation allowance. In the
meantime, on 14.01.2013 the Ministry of Home Affairs sent a
letter that the competent authority had agreed that deputation
allowance be paid to the personnel of the Central Para Military
Forces deputed with the NDRF @ 5% if they are deputed in the
same station and @ 10% if deputed outside the station subject to
certain conditions. On the basis of this letter, the Director
General, NDRF issued an order on 18.02.2013 on the above
lines. However, the deputation allowance was made payable with
effect from 14.01.2013. This was also clarified by the
Government of India in its letter dated 25.03.2014.
7. In the meantime, the Delhi High Court vide judgment dated
11.08.2015 in Writ Petition (C) No.2532 of 2012, Brij Bhushan v.
Union of India, which was a case of another employee of CISF
deputed with the NDRF with effect from 24.07.2008, held that
the petitioner therein would be entitled to deputation allowance
for the period he remained in service with the NDRF. The
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judgment of the Delhi High Court was based on interpretation of
the subrule 3(1) and 3(2) of the Rules which read as follows:
“3. Constitution of Force:
(1) The personnel deputed from the Central Para Military
Forces by the Central Government in the Ministry of
Home Affairs vide Order number 1/15/20002DM/NDM
III(A), dated the 19th January, 2006 shall be deemed to
have been deputed in the National Disaster Response
Force under these Rules.”
“(2) The Central Government may, in consultation with
the National Authority, depute, as and when required,
such number of personnel from the Central Para Military
Forces to the National Disaster Response Force for the
purposes of disaster management, having skills,
capabilities and qualifications and experience of handling
disaster and their management and such other technical
qualifications as prescribed by the Central Government in
this behalf.
Provided that in the case of nonavailability of personnel
with the required technical qualification and experience,
the Central Government may appoint such personnel
through deputation from other organizations.”
8. The Delhi High Court held that the writ petitioner was
deemed to be on deputation in terms of subrule 3(1) and 3(2) of
the Rules and OM No. 6/8/2009Esti.(Pay II) dated 17.06.2010,
which reads as follows:
“(e) Appointments of the nature of deemed deputation or
transfers to excadre posts made in exigencies of service
with the specific condition that no deputation (duty)
allowance will be admissible – e.g. (i) interim
arrangements in the event of conversion of a Government
office/organisation or a portion thereof into a
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PSU/autonomous body or viceversa, and (ii)
appointments to the same post in another cadre.”
Relying on the aforesaid O.M., the Delhi High Court held
that all persons who joined the NDRF would be treated to be on
deputation from the date they joined the NDRF. Special Leave
Petition against the said judgment was dismissed in limine
without expressing any opinion on the merits of the case.
9. Coming to the instant case, the respondent filed writ
petition in the Madras High Court. The learned Single Judge of
the Madras High Court allowed the writ petition filed by the
respondent herein relying upon the judgment of the Delhi High
Court in the matter of Brij Bhushan (supra) referred to above.
The learned Single Judge not only granted deputation allowance
but also granted special allowance to the respondent.
10. Aggrieved by the aforesaid judgment, an appeal was filed
before the Division Bench of the High Court by the Union of
India. The Division Bench partly allowed the appeal of the Union
of India and held that the respondent was only entitled to
deputation allowance and not to any special allowance. However,
the Division Bench further went on to hold that not only the
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respondent but all other personnel of the NDRF drawn from other
forces from 19.01.2006 up to 13.01.2013 would be entitled to be
paid deputation allowance and the Central Government was
directed to ensure that this amount was paid within a maximum
period of six months. This judgment is under challenge before
us.
11. It is pertinent to mention that at the time of admission the
judgment and order dated 22.01.2007 passed by the High Court
of Madras was stayed.
12. We have heard Ms. Madhavi Divan, learned Additional
Solicitor General for the State, Mr. Dhirendra Kumar Mishra,
learned counsel for the respondent and Ms. Santwana, learned
counsel for the intervenors. At this stage, we may point out that
the intervenors are members of the NDRF and they filed petitions
before the Delhi High Court claiming deputation allowance like
the respondent. In their cases an order has been passed by the
Delhi High Court that the judgment of this Court in the present
case be awaited since that will have vital bearing on the case of
the intervenors. Therefore, we have heard learned counsel for the
intervenors in detail.
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13. The main argument raised on behalf of the appellant is that
the O.M. granting deputation allowance makes it clear that the
said allowance is to be paid from 14.01.2013 in which the Court
could not have directed payment of the said allowance from the
date of the constitution of the force on 19.01.2006. In the
alternative, it is submitted that the personnel of the various
Central Para Military Forces who were sent to the NDRF could
not be said to be on deputation at least till 13.01.2010 when the
NDRF constituted its own Battalions. It is urged by Ms. Madhavi
Divan that it was not one personnel who was deputed from the
Central Para Military Forces to the NDRF but entire Battalions.
These Battalions remained under the administrative and
disciplinary control of the Central Para Military Forces to which
they belonged and the basic requirement of deputation that the
master should change did not happen. On the other hand, the
respondent placed reliance on the reasoning given by the Delhi
High Court in Brij Bhushan case (supra) and the various
communications and it is submitted that right from the
constitution of the NDRF in terms of Rule 3(1) of the Rules all
personnel deputed from the Central Para Military Forces would
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be deemed to be deputed in the NDRF. Rule 3(2) also provided
for deputation of such employees to the NDRF.
14. What is deputation has been very succinctly explained in
the judgment of this Court in the case of Umapati Choudhary v.
State of Bihar1 wherein this Court held as follows:
“8. Deputation can be aptly described as an assignment
of an employee (commonly referred to as the
deputationist) of one department or cadre or even an
organisation (commonly referred to as the parent
department or lending authority) to another department
or cadre or organisation (commonly referred to as the
borrowing authority). The necessity for sending on
deputation arises in public interest to meet the exigencies
of public service. The concept of deputation is consensual
and involves a voluntary decision of the employer to lend
the services of his employee and a corresponding
acceptance of such services by the borrowing employer. It
also involves the consent of the employee to go on
deputation or not. In the case at hand all the three
conditions were fulfilled….”
In Prasar Bharti v. Amarjeet Singh2 this Court held thus:
“13. There exists a distinction between “transfer” and
“deputation”. “Deputation” connotes service outside the
cadre or outside the parent department in which an
employee is serving. “Transfer”, however, is limited to
equivalent post in the same cadre and in the same
department. Whereas deputation would be a temporary
phenomenon, transfer being antithesis must exhibit the
opposite indications.
xxx xxx xxx
1 (1999) 4 SCC 659
2 (2007) 9 SCC 539
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17. It has not been disputed that the functions of the
Central Government have been taken over by the
Corporation in terms of Section 12 of the Act, when the
Corporation has started functioning on and from the
appointed day. It requires manpower for managing its
affairs. It has been doing so with the existing staff. They
are being paid their salaries or other remunerations by
the Corporation. They are subjected to effective control by
its officers. The respondents, for all intent and purposes,
are therefore, under the control of the Corporation.
xxx xxx xxx
20. The concept of control implies that the controlling
officer must be in a position to dominate the affairs of its
subordinate. It unless otherwise defined would be
synonymous with superintendence, management or
authority to direct, restrict or regulate. It is exercised by a
superior authority in exercise of its supervisory power. It
may amount to an effective control, which may either be
de facto or remote….”
15. A reading of the aforesaid judgment makes it clear that
deputation envisages the assignment of an employee of one
department/cadre/organisation to another
department/cadre/organisation in the public interest. It is also
clear that normally deputation also involves the consent of the
employee. In Prasar Bharti case (supra) this Court also held
that on transfer of the services in the case of deputation, the
control with regard to the employee would also determine
whether such employee was on deputation or not.
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16. As far as the present case is concerned, as we have noticed
above, till 11.09.2009 the respondent continued to be under the
control of his parent organisation i.e. CISF and was also getting
his pay and allowances from the said authority. Therefore,
though he as a member of his Battalion may have been serving
the NDRF, it cannot be said that he was on deputation to the
NDRF. His organisation had agreed to deploy some of its
Battalions with the NDRF. However, the administrative and
disciplinary control over such employees remained with the CISF.
The emoluments were also paid by the CISF and, therefore, it
cannot be said that the NDRF was the employer or master of the
respondent. In such circumstances, up to 10.09.2009 the
respondent could not be said to be on deputation even though as
per the Rules he may have been described as a deputanionist.
This term has been very loosely used but for payment of
deputation allowance it must be shown that the services of the
employee had been transferred to another
department/cadre/organisation and the control over the
employee now vests with the transferee
department/cadre/organisation. However, on 11.09.2009, the
date when the Ministry of Home Affairs conferred the command
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and control of the Battalions drawn from the various Central
Para Military Forces with the Director General, NDRF and from
which date these personnel drew their pay from the NDRF they
would be deemed to be on deputation with the NDRF.
17. Ms. Madhavi Divan has also urged that the High Court
without any jurisdiction or prayer before it wrongly directed that
such relief be given to all employees and that too from 2006. We
are in agreement with the submission. Before the learned Single
Judge, it was only the respondent herein who was the petitioner
and his prayer was only for his representation being considered.
Despite that, the learned Single Judge went beyond the relief
claimed and granted him benefit of certain allowances. An
appeal was filed only by the Union of India. No other person was
there before the Division Bench. In such a case, we do not
understand how the Union of India could have been put in a
worse position than it would have been if it had not filed an
appeal.
18. We also are of the view that the High Court exceeded its
jurisdiction in matters like this. The High Court exercise its
jurisdiction only over State(s) of which it is the High Court. It
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has no jurisdiction for the rest of the country. Matters like the
present may be pending in various parts of the country. In the
present case, matter had been decided by the Delhi High Court
but some other High Court may or may not have taken different
view. The High Court of Madras could not have passed such
order. It has virtually usurped the jurisdiction of other High
Courts in the country. It is true that sometimes this Court has
ordered that all similarly situated employees may be granted
similar relief but the High Court does not have the benefit of
exercising the power under Article 142 of the Constitution. In
any event, this Court exercises jurisdiction over the entire
country whereas the jurisdiction of the High Court is limited to
the territorial jurisdiction of the State(s) of which it is the High
Court. The High Court may be justified in passing such an order
when it only affects the employees of the State falling within its
jurisdiction but, in our opinion, it could not have passed such an
order in the case of employees where pan India repercussions
would be involved.
19. In view of the above discussion, we partly allow the appeal
and direct that the respondent shall be paid deputation
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allowance with effect from 11.09.2009 till 07.10.2011 when he
was relieved from service. As far as the intervenors are
concerned, the Delhi High Court can now dispose of their writ
petition in view of the law which we have laid down above.
Pending application(s) if any, shall accordingly stand disposed of.
…………………………………J.
(Deepak Gupta)
…………………………………J.
(Aniruddha Bose)
New Delhi
April 3, 2020
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