UNION OF INDIA & ORS. versus R. THIYAGARAJAN on 3 April 2020

146

SUPREME COURT REPORTS

[2020] 4 S.C.R.

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UNION OF INDIA & ORS.

v.

R. THIYAGARAJAN

(Civil Appeal No. 2229 of 2020)

BAPRIL 03, 2020

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Service Law – Deputation – Claim for deputation allowance– The respondent was employed with Central Industrial SecurityForce (CISF) in the year 1999 – The appellant-Union of IndiaCconstituted a National Disaster Response Force (NDRF) under theDisaster Management Act, 2005 – The Disaster Management(National Disaster Response Force) Rules, 2008 were enforced witheffect from 11.09.2009 – After, the enforcement of Rules, the variousCentral Para Military Forces including CISF were sent to the NDRFand re-named as NDRF Battalions and their control vested with theDNDRF from 11.09.2009 and the Battalions drew their pay andallowances from 11.09.2009 from the NDRF – The tenure of therespondent sent to the NDRF on 18.4.2008 came to an end on07.10.2011, when he was relieved from his duties in NDRF andrepatriated to the CISF – Respondent sought grant of deputationEallowance and filed writ petition before the High Court – The SingleJudge of the High Court not only granted deputation allowancebut also granted special allowance – The Division Bench of theHigh Court held that respondent was only entitled to deputationallowance and not any special allowance and went on to hold thatnot only respondent but all other personnel of the NDRF drawnFfrom other forces from 19.01.2006 upto 13.01.2013 were entitledfor deputation allowance – On appeal, held: In the instant case,the respondent continued to be under the control of his parentorganization i.e. CISF till 11.09.2009 and was also getting his payand allowance from the said authority – Therefore, though he mayGhave been serving the NDRF, it cannot be said that he was ondeputation to the NDRF – The term deputation is loosely used butfor payment of deputation allowance it must be shown that theservices of the employee had been transferred to another department/cadre/organization and the control over the employee now vestswith the transferee department/cadre/organization – However,H

on 11.09.2009, the date when the Ministry of Home Affairsconferred the command and control of the Battalions drawn fromvarious Central Para Military Forces with the Director General,NDRF and from the said date these personnel drew their pay fromthe NDRF they would be deemed to be on deputation with the NDRF– Therefore, respondent directed to be paid deputation allowancewith effect from 11.09.2009 till 07.10.2011 when he was relievedfrom the Service – Besides, the High Court exceeded its jurisdictionin the present matter – The Supreme Court exercises jurisdictionover the entire Country whereas the jurisdiction of the High Courtis limited to the territorial jurisdiction of the State of which it is theHigh Court – The High Court may be justified in passing an orderwhen it only affects the employees of its State, but it could not havepassed such an order in the case of employees where pan Indiarepercussions were involved.

Partly allowing the appeal, the Court

Conclusion

Partly allowing the appeal, the Court

Held: 1. As far as the present case is concerned, till11.09.2009 the respondent continued to be under the control ofhis parent organisation i.e. CISF and was also getting his pay andallowances from the said authority. Therefore, though he as amember of his Battalion may have been serving the NDRF, itcannot be said that he was on deputation to the NDRF. Hisorganisation had agreed to deploy some of its Battalions with theNDRF. However, the administrative and disciplinary control oversuch employees remained with the CISF. The emoluments werealso paid by the CISF and, therefore, it cannot be said that theNDRF was the employer or master of the respondent. In suchcircumstances, up to 10.09.2009 the respondent could not besaid to be on deputation even though as per the Rules he mayhave been described as a deputanionist. This term has been veryloosely used but for payment of deputation allowance it must beshown that the services of the employee had been transferred toanother department/cadre/organisation and the control over theemployee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the Ministryof Home Affairs conferred the command and control of theBattalions drawn from the various Central Para Military Forceswith the Director General, NDRF and from which date thesepersonnel drew their pay from the NDRF they would be deemedto be on deputation with the NDRF. [Para 16][154-D-H]

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148SUPREME COURT REPORTS

A2. This Court also is of the view that the High Courtexceeded its jurisdiction in matters like this. The High Courtexercise its jurisdiction only over State(s) of which it is the HighCourt. It has no jurisdiction for the rest of the country. Matterslike the present may be pending in various parts of the country.In the present case, matter had been decided by the Delhi HighBCourt but some other High Court may or may not have takendifferent view. The High Court of Madras could not have passedsuch order. It has virtually usurped the jurisdiction of other HighCourts in the country. It is true that sometimes this Court hasordered that all similarly situated employees may be grantedCsimilar relief but the High Court does not have the benefit ofexercising the power under Article 142 of the Constitution. Inany event, this Court exercises jurisdiction over the entire countrywhereas the jurisdiction of the High Court is limited to theterritorial jurisdiction of the State(s) of which it is the High Court.The High Court may be justified in passing such an order when itDonly affects the employees of the State falling within its jurisdictionbut, in opinion of this Court, it could not have passed such anorder in the case of employees where pan India repercussionswould be involved. [Para 18][155-C-F]

Umapati Choudhary v. State of Bihar (1999) 4 SCCE659 : [1999] 3 SCR 752; Prasar Bharti v. Amarjeet–Singh (2007) 9 SCC 539 : [2007] 2 SCR 160 relied on.

Brij Bhushan v. Union of India (Writ Petition (C)No.2532 of 2012) – referred to.F

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2229Gof 2020.

From the Judgment and Order dated 21.02.2017 of the High Courtof Judicature at Madras in WA No. 1645/2016.

Ms. Madhavi Divan, ASG, Sahil Monga and B. V. Balaram Das,HAdvs. for the Appellants.

Dhirendra Kr. Mishra, P. B. Reddy, Patnam Shyla, Mrs. SarlaChandra, Ms. Santwana and B. Y. Kulkarni, Advs. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. Leave granted.

2. The respondent is employed with the Central Industrial SecurityForce (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. Section44 of the Act provides that a National Disaster Response Force (NDRF)shall be constituted for the purpose of specialised response to threateningdisaster situations or disasters. The Ministry of Home Affairs approvedthe 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 andnotified on 13.02.2008. The Rules were, in fact, enforced with effectfrom 11.09.2009.

4. The NDRF was initially constituted by drawing Battalions fromthe Central Police Forces, Border Security Force (BSF), Central RailwayPolice Force (CRPF), Indo Tibetan Border Police (ITBP) and CentralIndustrial Security Force (CISF). The entire Battalions were sent to theDirector General, NDRF. Prior to the enforcement of the Rules i.e. on11.09.2009, the personnel belonging to the various Central Para MilitaryForces continued to remain under the control and command of theirrespective police forces. They also continued to receive their pay andallowances from their parent organisation. After the Rules were enforcedon 11.09.2009, the Battalions of the Central Para Military Forces whichwere sent to the NDRF were re-named as NDRF Battalions and theircontrol has from that date vested with the NDRF. They also drew theirpay and allowances from 11.09.2009 from the NDRF.

5. On 13.01.2010, an office memorandum was issued by theDirector General, NDRF which provided that the Battalions of the NDRFhad been re-named and re-numbered in the NDRF to give the force aseparate identity. The tenure of the respondent who had been sent to theNDRF on 18.04.2008 came to an end on 07.10.2011 when he was relievedof his duties in NDRF and repatriated to the CISF. He submitted a A

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Arepresentation to the Director General, NDRF requesting that he begranted 10% deputation allowance and 25% special allowance with effectfrom 18.04.2008. Vide communication dated 23.07.2011 the respondentwas informed that his case for grant of deputation allowance had beentaken up with the Ministry of Home Affairs. On 31.07.2011, the respondentfiled a writ petition in the High Court of Madras in which the prayer wasBthat the respondent in the writ petition i.e. Union of India, DirectorGeneral, NDRF and Director General, CISF be directed to pass orderson his representation dated 20.07.2011.

6. The appellant and other respondents in the writ petition contestedthe writ petition and claimed that the writ petitioner is not entitled toCgrant of any deputation allowance. In the meantime, on 14.01.2013 theMinistry of Home Affairs sent a letter that the competent authority hadagreed that deputation allowance be paid to the personnel of the CentralPara Military Forces deputed with the NDRF @ 5% if they are deputedin the same station and @ 10% if deputed outside the station subject toDcertain conditions. On the basis of this letter, the Director General, NDRFissued an order on 18.02.2013 on the above lines. However, the deputationallowance was made payable with effect from 14.01.2013. This wasalso clarified by the Government of India in its letter dated 25.03.2014.

7. In the meantime, the Delhi High Court vide judgment datedE11.08.2015 in Writ Petition (C) No.2532 of 2012, Brij Bhushan v. Unionof India, which was a case of another employee of CISF deputed withthe NDRF with effect from 24.07.2008, held that the petitioner thereinwould be entitled to deputation allowance for the period he remained inservice with the NDRF. The judgment of the Delhi High Court wasbased on interpretation of the sub-rule 3(1) and 3(2) of the Rules whichFread as follows:

“3. Constitution of Force:

(1) The personnel deputed from the Central Para Military Forcesby the Central Government in the Ministry of Home Affairs videGOrder number 1/15/20002-DM/NDM-III(A), dated the 19[th]January, 2006 shall be deemed to have been deputed in the NationalDisaster Response Force under these Rules.”

“(2) The Central Government may, in consultation with the NationalAuthority, depute, as and when required, such number of personnelfrom the Central Para Military Forces to the National DisasterH

Response Force for the purposes of disaster management, havingskills, capabilities and qualifications and experience of handlingdisaster and their management and such other technicalqualifications as prescribed by the Central Government in thisbehalf.

Provided that in the case of non-availability of personnel with therequired technical qualification and experience, the CentralGovernment may appoint such personnel through deputation fromother organizations.”

8. The Delhi High Court held that the writ petitioner was deemedto be on deputation in terms of sub-rule 3(1) and 3(2) of the Rules andOM No. 6/8/2009-Esti.(Pay II) dated 17.06.2010, which reads as follows:

“(e) Appointments of the nature of deemed deputation or transfersto ex-cadre posts made in exigencies of service with the specificcondition that no deputation (duty) allowance will be admissible –e.g. (i) interim arrangements in the event of conversion of aGovernment office/organisation or a portion thereof into a PSU/autonomous body or vice-versa, and (ii) appointments to the samepost in another cadre.”

Relying on the aforesaid O.M., the Delhi High Court held that allpersons who joined the NDRF would be treated to be on deputationfrom the date they joined the NDRF. Special Leave Petition against thesaid judgment was dismissed in limine without expressing any opinionon the merits of the case.

9. Coming to the instant case, the respondent filed writ petition inthe Madras High Court. The learned Single Judge of the Madras HighCourt allowed the writ petition filed by the respondent herein relyingupon the judgment of the Delhi High Court in the matter of Brij Bhushan(supra) referred to above. The learned Single Judge not only granteddeputation allowance but also granted special allowance to therespondent.

10. Aggrieved by the aforesaid judgment, an appeal was filedbefore the Division Bench of the High Court by the Union of India. TheDivision Bench partly allowed the appeal of the Union of India and heldthat the respondent was only entitled to deputation allowance and not toany special allowance. However, the Division Bench further went on tohold that not only the respondent but all other personnel of the NDRF

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Adrawn from other forces from 19.01.2006 up to 13.01.2013 would beentitled to be paid deputation allowance and the Central Governmentwas directed to ensure that this amount was paid within a maximumperiod of six months. This judgment is under challenge before us.

11. It is pertinent to mention that at the time of admission theBjudgment and order dated 22.01.2007 passed by the High Court of Madraswas stayed.

12. We have heard Ms. Madhavi Divan, learned Additional SolicitorGeneral for the State, Mr. Dhirendra Kumar Mishra, learned counselfor the respondent and Ms. Santwana, learned counsel for the intervenors.CAt this stage, we may point out that the intervenors are members of theNDRF and they filed petitions before the Delhi High Court claimingdeputation allowance like the respondent. In their cases an order hasbeen passed by the Delhi High Court that the judgment of this Court inthe present case be awaited since that will have vital bearing on thecase of the intervenors. Therefore, we have heard learned counsel forDthe intervenors in detail.

13. The main argument raised on behalf of the appellant is thatthe O.M. granting deputation allowance makes it clear that the saidallowance is to be paid from 14.01.2013 in which the Court could nothave directed payment of the said allowance from the date of theEconstitution of the force on 19.01.2006. In the alternative, it is submittedthat the personnel of the various Central Para Military Forces who weresent to the NDRF could not be said to be on deputation at least till13.01.2010 when the NDRF constituted its own Battalions. It is urgedby Ms. Madhavi Divan that it was not one personnel who was deputedFfrom the Central Para Military Forces to the NDRF but entire Battalions.These Battalions remained under the administrative and disciplinarycontrol of the Central Para Military Forces to which they belonged andthe basic requirement of deputation that the master should change didnot happen. On the other hand, the respondent placed reliance on thereasoning given by the Delhi High Court in Brij Bhushan case (supra)Gand the various communications and it is submitted that right from theconstitution of the NDRF in terms of Rule 3(1) of the Rules all personneldeputed from the Central Para Military Forces would be deemed to bedeputed in the NDRF. Rule 3(2) also provided for deputation of suchemployees to the NDRF.

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14. What is deputation has been very succinctly explained in thejudgment of this Court in the case of Umapati Choudhary v. State ofBihar[1] wherein this Court held as follows:

“8. Deputation can be aptly described as an assignment of anemployee (commonly referred to as the deputationist) of onedepartment or cadre or even an organisation (commonly referredto as the parent department or lending authority) to anotherdepartment or cadre or organisation (commonly referred to asthe borrowing authority). The necessity for sending on deputationarises in public interest to meet the exigencies of public service.The concept of deputation is consensual and involves a voluntarydecision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowingemployer. It also involves the consent of the employee to go ondeputation or not. In the case at hand all the three conditionswere fulfilled….”

In Prasar Bharti v. Amarjeet Singh[2] this Court held thus:

“13. There exists a distinction between “transfer” and“deputation”. “Deputation” connotes service outside the cadre oroutside the parent department in which an employee is serving.“Transfer”, however, is limited to equivalent post in the same cadreand in the same department. Whereas deputation would be atemporary phenomenon, transfer being antithesis must exhibit theopposite indications.

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17. It has not been disputed that the functions of the CentralGovernment have been taken over by the Corporation in terms ofSection 12 of the Act, when the Corporation has started functioningon and from the appointed day. It requires manpower for managingits affairs. It has been doing so with the existing staff. They arebeing paid their salaries or other remunerations by the Corporation.They are subjected to effective control by its officers. Therespondents, for all intent and purposes, are therefore, under thecontrol of the Corporation.

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1 (1999) 4 SCC 659

2 (2007) 9 SCC 539

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A20. The concept of control implies that the controlling officer mustbe in a position to dominate the affairs of its subordinate. It unlessotherwise defined would be synonymous with superintendence,management or authority to direct, restrict or regulate. It isexercised by a superior authority in exercise of its supervisorypower. It may amount to an effective control, which may eitherBbe de facto or remote….”

15. A reading of the aforesaid judgment makes it clear thatdeputation envisages the assignment of an employee of one department/cadre/organisation to another department/cadre/organisation in the publicinterest. It is also clear that normally deputation also involves the consentCof the employee. In Prasar Bharti case (supra) this Court also heldthat on transfer of the services in the case of deputation, the control withregard to the employee would also determine whether such employeewas on deputation or not.

16. As far as the present case is concerned, as we have noticedDabove, till 11.09.2009 the respondent continued to be under the controlof his parent organisation i.e. CISF and was also getting his pay andallowances from the said authority. Therefore, though he as a memberof his Battalion may have been serving the NDRF, it cannot be said thathe was on deputation to the NDRF. His organisation had agreed to deployEsome of its Battalions with the NDRF. However, the administrative anddisciplinary control over such employees remained with the CISF. Theemoluments were also paid by the CISF and, therefore, it cannot be saidthat the NDRF was the employer or master of the respondent. In suchcircumstances, up to 10.09.2009 the respondent could not be said to beon deputation even though as per the Rules he may have been describedFas a deputanionist. This term has been very loosely used but for paymentof deputation allowance it must be shown that the services of the employeehad been transferred to another department/cadre/organisation and thecontrol over the employee now vests with the transferee department/cadre/organisation. However, on 11.09.2009, the date when the MinistryGof Home Affairs conferred the command and control of the Battalionsdrawn from the various Central Para Military Forces with the DirectorGeneral, NDRF and from which date these personnel drew their payfrom the NDRF they would be deemed to be on deputation with theNDRF.

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17. Ms. Madhavi Divan has also urged that the High Court withoutany jurisdiction or prayer before it wrongly directed that such relief begiven to all employees and that too from 2006. We are in agreementwith the submission. Before the learned Single Judge, it was only therespondent herein who was the petitioner and his prayer was only forhis representation being considered. Despite that, the learned Single Judgewent beyond the relief claimed and granted him benefit of certainallowances. An appeal was filed only by the Union of India. No otherperson was there before the Division Bench. In such a case, we do notunderstand how the Union of India could have been put in a worseposition than it would have been if it had not filed an appeal.

18. We also are of the view that the High Court exceeded itsjurisdiction in matters like this. The High Court exercise its jurisdictiononly over State(s) of which it is the High Court. It has no jurisdiction forthe rest of the country. Matters like the present may be pending in variousparts of the country. In the present case, matter had been decided by theDelhi High Court but some other High Court may or may not have takendifferent view. The High Court of Madras could not have passed suchorder. It has virtually usurped the jurisdiction of other High Courts in thecountry. It is true that sometimes this Court has ordered that all similarlysituated employees may be granted similar relief but the High Courtdoes not have the benefit of exercising the power under Article 142 ofthe Constitution. In any event, this Court exercises jurisdiction over theentire country whereas the jurisdiction of the High Court is limited to theterritorial jurisdiction of the State(s) of which it is the High Court. TheHigh Court may be justified in passing such an order when it only affectsthe 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 wherepan India repercussions would be involved.

19. In view of the above discussion, we partly allow the appealand direct that the respondent shall be paid deputation allowance witheffect 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 nowdispose of their writ petition in view of the law which we have laid downabove. Pending application(s) if any, shall accordingly stand disposed of.

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