Facts of the Case
The Respondent was sent to the National Disaster Response Force (NDRF), which 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). Before the enforcement of the Rules, each of the personnel belonging to Central Para Military Forces remained under control and command of the respective forces. Post the enforcement of Rules on 11.09.2009 the control of the Battalions was vested with NDRF.
The Appeal arises from the decision of a Single Judge of the Madras High Court, wherein the Judge allowed the writ petition filed by the Respondent asking for deputation allowance. The Respondent filed a writ petition before the Madras High Court praying to direct the Appellant to pass an order on his representation requesting a grant of 10% Deputation Allowance and 25% special allowance with effect from 18.04.2008. The Ministry of Home Affairs agreed to grant a deputation allowance of 5% if they are deputed in the same station and 10% if deputed outside the station. However, the same was payable with effect from 14.01.2013.
Meanwhile, the Division Bench of Delhi High Court in Brij Bhushan v. Union of India, judgement dated 11.08.2015 interpreted sub-rules 3(1) and 3(2) of the Rules and held not only the Respondent but all the personnel deputed were entitled to deputation allowance from the date they joined NDRF.
Arguments before the Court
The main submission of the Appellant was that the allowance could be granted only from 14.01.2013 when O.M. granting the same was announced and not from the date of constitution of the force on 19.01.2006. Alternatively, these Battalions were under the administrative and disciplinary control of the Central Para Military Forces and that basic requirement of the change in master did not happen.
The Respondent argued on the basis of the interpretation of Rules 3(1) and 3(2) reasoned by the Delhi High Court in Brij Bhushan case and submitted that all personnel deputed from the Central Para Military Forces would be deemed to be deputed in the NDRF.
Court’s View on Deputation Allowance
In order to determine the allowance, the Court had to determine if the personnel deputed fulfilled the basic requirements of deputation. The Supreme Court had succinctly explained the concept of deputation in the case of Umapati Choudhary v. the State of Bihar (1999) 4 SCC 659, and described deputation as an assignment of an employee (deputationist) of one department or cadre or even an organisation to another department or cadre or organisation, in public interest. Moreover, the deputation has to be consensual of both the employers (lender and borrower) along with the consent of the employee.
However, the Court in Prasar Bharti v, Amarjeet Singh (2007) 9 SCC 539, made another important observation and held that on transfer of the services in the case of deputation, the control with regards to the employee would also determine whether such employee was on deputation or not.
In the instant case, it was noted that till the enforcement of the Rules, 11.09.2009, the Respondent was under the control of his parent organisation and was paid by the said organisation. Though he was a member of the Battalion serving NDRF, it cannot be said that he was deputed to NDRF. Therefore, till 10.09.2009, he could not have been said to have been deputed to NDRF since all the administrative and disciplinary control over such employees remained with the parent organisation, that is, CISF. Hence, the Respondent was entitled to deputation allowance only after the control over the Battalion was handed over to NDRF on 11.09.2009 till he was relieved from service on 07.10.2011.
Moreover, the Court observed that the Madras High Court exceeded its jurisdiction by directing the Appellant to grant similar relief to all personnel deputed to NDRF. The Supreme Court observed as follows:
“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.”
Accordingly, the Court partly allowed the appeal and directed the Appellant to pay the deputation allowance from 11.09.2009 till 07.10.2011.
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