Kerala High Court · 2009

WP(C) No.21237/2009-2-3.Accordingly, the representation was considered andExt.P5 order dated 17/07/2009 was passed rejecting his requestand also stating that the 1st petitioner, the wife, also has beenposted from CISF Unit, Udyogamandal to RTC, Arakkonam videService Order No.370/2009 dated 17/07/2009. On receipt ofExt.P5, this writ petition has been filed by both of them praying todirect the respondents to retain the petitioners at the CISF Units, atFACT Udyogamandal and Cochin International Airport Ltd.,Nedumbassery. 4.The learned counsel for the petitioners contended thatthe posting of the 2nd petitioner to NDRF Battalion, Arakkonam is inviolation of the provisions contained in the Disaster ManagementAct, 2005, and the Disaster Management (National DisasterResponse Force) Rules, 2008. According to him, the Act and theRules contemplate only deputation of personnel from Central ParaMilitary Forces to NDRF and that such deputation can only be withthe consent of the person deputed to NDRF. It is contended thatthe 2nd petitioner did not consent for his deputation and thereforehis deputation is illegal. Another contention raised by the learned WP(C) No.21237/2009-3-counsel for the petitioners was that the posting of the 2nd petitionerto NDRF Battalion, Arakkonam and the posting of the 1st petitionerto RTC, Arakkonam, is in violation of Ext.P1guidelines governingposting of husband and wife on transfer at the same station, andExt.P2 circular No.13/09, the guidelines governing transfer of CISFpersonnel. 5.In the affidavits filed, the respondents are seeking tojustify the posting of the 2nd petitioner to NDRF Battalion,Arakkonam mainly contending that his posting is by way of transferand that the same was necessitated in the exigencies of service. Itis submitted that the NDRF was initially a part of the CISF, and isstill under the administrative control of the Director General of CISF.It is submitted that it was in order to redress the grievance of the2nd petitioner that his wife should also be posted at the samestation, that the 1st petitioner was ordered to be posted at RTC,Arakkonam and therefore there is no violation of Exts.P1 and P2guidelines. They have also stated that the grievance of thepetitioners that their children are studying in 9th, 3rd & KG classes,also has no substance, in as much as education and medical WP(C) No.21237/2009-4-facilities are also equally available at Arakkonam.6.Among the two contentions raised by the learnedcounsel for the petitioners, the first contention is raised relying onthe provisions contained in the Disaster Management Act, 2005,and the Disaster Management (National Disaster Response Force)Rules, 2008. National Disaster Response Force has beenconstituted as per Sections 44 & 45 occurring in chapter VIII of theAct, which are extracted for reference. “44.National Disaster Response Force:- (1)There shall beconstituted a National Disaster Response Force for the purposeof specialist response to a threatening disaster situation ordisaster.(2)Subject to the provisions of this Act, the Force shall beconstituted in such manner and, the conditions of service of themembers of the Force, including disciplinary provisionstherefor, be such as may be prescribed.45.Control direction, etc.-: The general superintendence,direction and control of the Force shall be vested and exercisedby the National Authority and the command and supervision ofthe Force shall vest in an officer to be appointed by the CentralGovernment as the Director General of the National DisasterResponse Force. WP(C) No.21237/2009-5-7.The expressions “National Authority” and “CentralGovernment” occurring in Section 46 of the Act have been definedin Sections 2(j) and 2(c) respectively. “National Authority” isdefined as the National Disaster Management Authority establishedunder section 3(1) of the Act, and “Central Government” is definedas the Ministry or Department of the Government of India havingadministrative control of disaster management. 8.Section 75 of the Act confers power on the CentralGovernment to make Rules by notification in the official gazette forcarrying out the purposes of the Act. Section 75(2)(f) provides thatsuch rules may provide for the manner of constitution of NDRF, theconditions of service of members of the Force, includingdisciplinary provisions under Section 44(2) of the Act. In exerciseof the powers conferred under Section 75(2)(f) of the Act, theCentral Government made the Disaster Management (NationalDisaster Response Force) Rules, 2008. This Rule has beenpublished in the Gazette of India, extraordinary, dated 14/02/2008by the Ministry of Home Affairs, being the Ministry havingadministrative control of disaster management. WP(C) No.21237/2009-6-9.Rule 3 of the Rules, providing for the constitution of theNDRF, reads as under:-“3.Constitution of Force:-(1)The personnel deputed from theCentral Para Military Forces by the Central Government in theMinistry of Home Affairs vide Order number 1/15/2002-DM-1/NDM-III(A), dated the 19th January, 2006 shall be deemed tohave been deputed in the National Disaster Response Force underthese rules.(2)The Central Government may, in consultation with theNational Authority, depute, as and when required, such number ofpersonnel from the Central Para Military Forces to the NationalDisaster Response Force for the purposes of disastermanagement, having skills, capabilities and qualifications andexperience of handling disaster and their management and suchother technical qualifications as prescribed by the CentralGovernment in this behalf:Provided that in the case of non-availability of personnelwith the required technical qualification and experience, theCentral Government may appoint such personnel throughdeputation from other organisations or on contract basis. (3)The personnel of a battalion deputed to the NationalDisaster Response Force under these rules shall remain ordinarilyin such battalion for a period of five years:Provided that not more than twenty-five per cent of the Forcemay be replaced in one year.”A reading of this Rule shows that the Central Government may inconsultation with National Authority, which is the National Disaster WP(C) No.21237/2009-7-Management Authority established under Section 3(1) of the Act,depute personnel from Central Para Military Forces to the NDRF forthe purposes of disaster management. The expression “CentralPara Military Force” has been defined in Rule 2(c), and the CentralIndustrial Security Force constituted under the Central IndustrialSecurity Force Act, 1968 is also included in this definition. 10.Rule 4 provides that the general superintendence,direction and control of the NDRF shall vest and be exercised by theNational Authority, and Rule 6 provides that the terms andconditions of service including disciplinary powers relating topersonnel deputed from the Central Para Military Forces to NDRFshall continue to be regulated by the provisions of the Act and theRules applicable to the respective Force and its services. 11.A reading of the aforesaid provisions contained in theAct and the Rules noticed above would show that the NDRF is aservice or cadre, distinct and different from Central Para MilitaryForces, and that the Rule making authority has provided deputationas the method for posting personnel to NDRF and that thosedeputed to NDRF will be governed by the Act and the Rules WP(C) No.21237/2009-8-applicable to the respective Force and its services, from which theyare deputed. 12.The concept of deputation as understood in service lawmeans service outside the cadre or outside the parent department.Where an employee is deputed to a post outside his cadre, that is tosay, to another department on a temporary basis, and after theexpiry of the period, the employee has to come back to his parentdepartment, the employee is said to be on deputation. Furtherthere can be no deputation without the consent of the person to bedeputed. It has been held by the Apex Court that deputation canaptly be described as an assignment of an employee, commonlyreferred to as deputationist, of one department, cadre or anorganisation, to another department, cadre or organisation,commonly referred to as the borrowing authority. The concept ofdeputation has been accepted as consensual, involving a voluntarydecision of employer to lend the services of his employee and acorresponding acceptance of such services by the borrowingemployer, involving consent of the employee to go on deputation ornot. See in this connection the decisions in State of Punjab and WP(C) No.21237/2009-9-Others v. Inder Singh and Others (1997(8) SCC 372), UmapatiChoudhary v. State of Bihar and Another (1999 (4) SCC 659). Asagainst this, the broader concept of “transfer” has been held to be achange in the place of employment within an Organisation (State orRajasthan and Others v. Anand Prakash Solanki (2003(7) SCC 403).The Apex Court has, also held that there exists a distinctionbetween 'transfer' and 'deputation'. It has been held that whiledeputation connotes service outside the cadre or parent departmentin which the employee is serving, transfer is limited to anequivalent post in the same cadre and in the same department.Further, deputation has been held to be a temporary phenomenonand that transfer being its antithesis, must exhibit the oppositeindications. [See Prasar Bharati and Others v. Amarjeet Singh andOthers (2007(9) SCC 539]. 13.In this case, the petitioners belong to CISF governed bythe Central Industrial Security Force Act. NDRF, is another serviceconstituted under the Disaster Management (National DisasterResponse Force) Rules, 2008, framed under the DisasterManagement Act, 2005. Appreciated in the background of the law WP(C) No.21237/2009-10-as held by the Apex Court in the judgments referred to above, andthe factual position that CISF and NDRF are different services, Imust hold that deputation is the only permissible method to postpersonnel to NDRF and that transfer of personnel from CISF toNDRF is impermissible. It was therefore that the legislature hasconsciously prescribed deputation as the sole method for postingto the NDRF, and that too, complying with the manner andconditions specified in Rule 3 of the Rules referred to above. In thiscase, the 2nd petitioner has not consented for deputation, which isthe only method prescribed under the Rules. There is also nothingon record to indicate that the requirements of Rule 3(2) have beencomplied with. If that be so, the impugned order posting the 2ndpetitioner to the NDRF Battalion, Arakkonam is illegal, and cannotbe sustained.14.Since I have found that the method of posting to theNDRF Battalion is only by way of deputation, an examination of theimpact of Exts.P1 & P2 is not of any relevance. This is for thereason that these two guidelines are applicable in cases of transfer,and therefore cannot be of any relevance when the Act and the WP(C) No.21237/2009-11-Rules contemplate only deputation. 15.As already noticed, the 1st petitioner was ordered to beposted at RTC, Arakkonam from the CISF Unit, FACT,Udyogamandal only to redress the grievance of the 2nd petitioner,and was not in the exigencies of service. Hence, if the 2ndpetitioner's posting at NDRF Battalion, Arakkonam is illegal,necessarily, the 1st petitioner should also be retained at CISF Unit,FACT, Udyogamandal. For the aforesaid reasons, the posting of the 2nd petitioner atthe NDRF Battalion, Arakkonam is illegal, and is set aside. Therespondents are directed to retain the 2nd petitioner at the CochinInternational Airport Ltd., Nedumbassery, and the 1st petitioner atCISF Unit, FACT, Udyogamandal, from where she was posted toRTC, Arakkonam.This writ petition is disposed of with the aforesaid directions.(ANTONY DOMINIC, JUDGE)jg