Supreme Court clarifies deputation allowance for NDRF personnel: Union of India vs. R. Thiyagarajan (2020) INSC 188 (3 April 2020)

Introduction

Date of the Judgment: 3 April 2020

Citation: (2020) INSC 188

Judges: Deepak Gupta, J., Aniruddha Bose, J.

When does deputation begin for paramilitary personnel serving in the National Disaster Response Force (NDRF)? The Supreme Court of India addressed this question in a recent service law case concerning deputation allowances. The core issue revolved around when personnel from Central Para Military Forces, serving with the NDRF, could be considered on deputation and thus eligible for deputation allowances. The Supreme Court clarified that deputation begins when the control of the employee shifts to the borrowing organization, not merely from the date of their deployment. The judgment was delivered by a two-judge bench comprising Justice Deepak Gupta and Justice Aniruddha Bose.

Case Background

R. Thiyagarajan, the respondent, was a constable with the Central Industrial Security Force (CISF) since 1999. In 2005, the Disaster Management Act was enacted, leading to the formation of the National Disaster Response Force (NDRF) in 2006. Initially, the NDRF was composed of battalions drawn from various Central Para Military Forces, including the CISF. Thiyagarajan was sent to the NDRF on 18 April 2008.

The Disaster Management (National Disaster Response Force) Rules, 2008, were enforced on 11 September 2009. Before this date, personnel sent to the NDRF remained under the control of their parent organizations, receiving pay and allowances from them. After 11 September 2009, the NDRF Battalions were formally renamed, and their control vested with the NDRF.

On 13 January 2010, the NDRF issued an office memorandum renaming and renumbering the battalions. Thiyagarajan’s tenure with the NDRF ended on 7 October 2011, and he was repatriated to the CISF. He requested deputation and special allowances from 18 April 2008, which was initially denied.

Timeline

Course of Proceedings

Thiyagarajan filed a writ petition in the High Court of Madras, seeking a direction to the Union of India, Director General of NDRF, and Director General of CISF to consider his representation for deputation allowance. The High Court initially allowed his petition, granting both deputation and special allowances, relying on a judgment of the Delhi High Court in the case of Brij Bhushan v. Union of India.

The Union of India appealed to the Division Bench of the High Court, which partly allowed the appeal, holding that Thiyagarajan was entitled to deputation allowance but not special allowance. The Division Bench further directed that all NDRF personnel drawn from other forces from 19 January 2006 to 13 January 2013 should also be paid deputation allowance. This order was challenged before the Supreme Court. The Supreme Court stayed the Madras High Court order on 22 January 2017.

Legal Framework

The case primarily revolves around the interpretation of the Disaster Management Act, 2005 and the Disaster Management (National Disaster Response Force) Rules, 2008.

Section 44 of the Disaster Management Act, 2005 provides for the constitution of a National Disaster Response Force (NDRF) for specialised response to threatening disaster situations or disasters.

The Disaster Management (National Disaster Response Force) Rules, 2008, were framed under Section 75 of the Disaster Management Act, 2005. Rule 3 of the Rules, specifically sub-rules 3(1) and 3(2), are crucial to the case.

Rule 3 of the Disaster Management (National Disaster Response Force) Rules, 2008, states:

• “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 1/15/20002-DM/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 non-availability of personnel with the required technical qualification and experience, the Central Government may appoint such personnel through deputation from other organizations.”

The Delhi High Court relied upon Office Memorandum No. 6/8/2009-Esti.(Pay II) dated 17 June 2010, which states:

• “(e) Appointments of the nature of deemed deputation or transfers to ex-cadre 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 PSU/autonomous body or vice-versa, and (ii) appointments to the same post in another cadre.”

Arguments

The appellant, Union of India, argued that the deputation allowance was to be paid from 14 January 2013, as per the office memorandum, and the High Court could not have directed payment from the date of the force’s constitution on 19 January 2006. They contended that the personnel sent to NDRF were not on deputation until 13 January 2010, when NDRF constituted its own battalions. The appellant emphasized that entire battalions, not individual personnel, were sent to the NDRF, and these battalions remained under the control of their parent Central Para Military Forces. Therefore, the basic requirement of deputation, that the master should change, was not met.

The respondent, R. Thiyagarajan, relied on the Delhi High Court’s reasoning in the Brij Bhushan case and various communications, arguing that all personnel deputed from the Central Para Military Forces were deemed to be on deputation from the constitution of the NDRF as per Rule 3(1) of the Rules. Rule 3(2) also provided for deputation of such employees to the NDRF.

The intervenors, members of the NDRF, supported the respondent’s arguments, seeking deputation allowance from the date of their deployment to the NDRF.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

1. Whether the personnel of the Central Para Military Forces who were sent to the NDRF could be said to be on deputation, and if so, from what date?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

The Court also considered the following legal provisions:

• Section 44 of the Disaster Management Act, 2005
• Section 75 of the Disaster Management Act, 2005
• Rule 3(1) and 3(2) of the Disaster Management (National Disaster Response Force) Rules, 2008
• Office Memorandum No. 6/8/2009-Esti.(Pay II) dated 17 June 2010

Judgment

The Supreme Court held that the personnel of the Central Para Military Forces sent to the NDRF could not be said to be on deputation until 11 September 2009. Before this date, they remained under the control of their parent organizations, receiving pay and allowances from them. The Court emphasized that deputation requires a transfer of control to the borrowing organization.

The Supreme Court cited the case of Umapati Choudhary v. State of Bihar [(1999) 4 SCC 659]* to explain that deputation involves the assignment of an employee from one department to another, with a change in control. It also referred to Prasar Bharti v. Amarjeet Singh [(2007) 9 SCC 539]* to distinguish between transfer and deputation, emphasizing that deputation involves service outside the parent department and a change in control.

The Court noted that while the personnel were described as deputationists as per the Rules, the term was loosely used. For deputation allowance, it must be shown that the services of the employee had been transferred to another department, and control over the employee now vests with the transferee department.

The Court held that from 11 September 2009, when the Ministry of Home Affairs conferred the command and control of the battalions to the Director General, NDRF, and the personnel began drawing their pay from the NDRF, they would be deemed to be on deputation with the NDRF.

The Supreme Court also observed that the High Court of Madras had exceeded its jurisdiction by directing that all employees be given the benefit of deputation allowance from 2006, even though the petition was filed by only one employee, and no other person was before the Division Bench. The Court also noted that the High Court had no jurisdiction to pass such orders with pan-India repercussions.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the interpretation of the concept of “deputation” and the necessity for a transfer of control from the parent organization to the borrowing organization. The Court emphasized that merely being assigned to another force does not constitute deputation unless the control over the employee also shifts. This was a key factor in determining the date from which deputation allowance would be applicable.

The Court’s reasoning was primarily based on legal principles and precedents related to deputation, with a lesser emphasis on the specific factual details of the case.

The Court considered the argument that all personnel should be considered on deputation from the date of their initial deployment to the NDRF, but rejected this interpretation because the control over the personnel remained with their parent organizations until 11 September 2009. The Court emphasized that the transfer of control is a necessary condition for deputation.

The Supreme Court’s decision was clear and accessible, holding that deputation begins when control over the employee shifts to the borrowing organization. This decision was based on a careful reading of the relevant rules, precedents, and legal principles.

The Court provided the following reasons for its decision:

• Deputation requires a transfer of control from the parent organization to the borrowing organization.
• Merely being assigned to another force does not constitute deputation.
• The date of transfer of control is the determining factor for the commencement of deputation.
• The High Court exceeded its jurisdiction by issuing orders with pan-India implications.

The Supreme Court did not have any dissenting opinions.

The Court’s reasoning was based on the interpretation of the concept of deputation and its application to the facts of the case. The Court’s interpretation of the relevant rules and precedents was clear and logical.

This judgment clarifies the concept of deputation in the context of personnel from Central Para Military Forces serving in the NDRF. It emphasizes that deputation begins when the control of the employee shifts to the borrowing organization, not merely from the date of their deployment. This has implications for similar cases involving deputation in government service.

The Supreme Court did not introduce any new doctrines or legal principles, but it clarified the existing principles related to deputation.

Key Takeaways

• Deputation allowance for personnel from Central Para Military Forces serving in the NDRF is applicable from 11 September 2009, when the control of the battalions was transferred to the NDRF.
• Deputation requires a transfer of control from the parent organization to the borrowing organization.
• High Courts should not pass orders with pan-India implications, as their jurisdiction is limited to the territorial jurisdiction of the State.

This judgment will affect all personnel from Central Para Military Forces who have served in the NDRF. It clarifies the date from which they are entitled to deputation allowance. It also sets a precedent for similar cases involving deputation in government service.

Directions

The Supreme Court directed that the respondent shall be paid deputation allowance with effect from 11 September 2009, till 7 October 2011, when he was relieved from service. The Delhi High Court was directed to dispose of the writ petitions of the intervenors in view of the law laid down by the Supreme Court.

Development of Law

The ratio decidendi of the case is that deputation begins when the control of the employee shifts to the borrowing organization, not merely from the date of their deployment. This clarifies the previous position where the date of deployment was often considered as the start date of deputation.

Conclusion

The Supreme Court’s judgment in Union of India vs. R. Thiyagarajan clarifies the concept of deputation in the context of personnel from Central Para Military Forces serving in the NDRF. The Court held that deputation begins when the control of the employee shifts to the borrowing organization, not merely from the date of their initial deployment. This decision has significant implications for the payment of deputation allowances to NDRF personnel and sets a precedent for similar cases involving deputation in government service. The Court also emphasized the jurisdictional limits of High Courts, stating that they should not pass orders with pan-India implications.