IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 21237 of 2009(Y) -------------------------- PETITIONER(S): PETITIONER. -------------------------- 1. MARYMOL T.P., W/O.SAMSON K SAMUEL, LADY ASI/CLK, NO.924390063, CISF UNIT, FACT LTD, UDYOGAMANDAL-683 501,ERNAKULAM. 2. SAMSOM K SAMUEL,INSPECTOR/EXE, CISF UNIT,(UNDER ORDERS OF TRANSFER) COCHIN INTERNATIONAL AIRPORT LTD, NEDUMBASSERRY,KOCHI-683 111. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. THE DIRECTOR GENERAL, CISF HQ, 13 CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003. 2. THE COMMANDANT, CISIF UNIT, CIAL, NEDUMBASSERY,KOCHI-683 111. 3. THE SENIOR COMMANDANT, CISF UNIT, FACT LTD, UDYOGAMANDAL,KOCHI-683 501. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-4 SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR G THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21237/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF OM DATED 12/6/97 ISSUED BY DOP & T, GOVT. OF INDIA. P2 : COPY OF CIRCULAR 13/07 DATED 08/10/07 ISSUED BY CISF DIRECTORATE. P3 : COPIES OF OM DATED 3/7/09 ISSUED BY R2. P4 : COPY OF INTERIM ORDER DATED 6/7/09 OF THIS HONOURABLE COURT IN WP(C) NO.18922/09. P5 : COPY OF ORDER DATED 17/7/09 ISSUED BY DIRECTORATE GENERAL, CISF. P6 : COPY OF MOVEMENT ORDER DATED 6/12/06. P7 : COPY OF REPRESENTATION DATED 22/7/09 OF 1ST PETITIONER. P8 : COPY OF MEDICAL CERTIFICATES OF THE PETITIONERS. P9 : COPY OF SCHOOL CERTIFICATE OF THE PETITIONER'S CHILDREN. //TRUE COPY// PA TO JUDGE. jg C.R. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.21237 of 2009 --------------------------------- Dated, this the 27th day of October, 2009 ------------------------------------ J U D G M E N T The 1st petitioner is working as ASI (Ministerial) in the Central Industrial Security Force (hereinafter referred to as CISF for short), and is presently posted at the CISF Unit, FACT, Udyogamandal. Her husband, the 2nd petitioner, is working as Inspector/Executive in the CISF Unit at the Cochin International Airport Ltd. 2. By order dated 14/05/2009, the 2nd petitioner was posted at National Disaster Response Force (NDRF for short) Battalion, Arakkonam, Tamilnadu. Thereupon he represented seeking its reconsideration and his retention at the present station. In WP(C) No.18922/09 filed by him, order dated 06/07/2009 was passed directing that the representation shall be considered and orders passed, retaining the 2nd petitioner at the Cochin International Airport Ltd., Nedumbassery, in the meanwhile. WP(C) No.21237/2009 -2- 3. Accordingly, the representation was considered and Ext.P5 order dated 17/07/2009 was passed rejecting his request and also stating that the 1st petitioner, the wife, also has been posted from CISF Unit, Udyogamandal to RTC, Arakkonam vide Service Order No.370/2009 dated 17/07/2009. On receipt of Ext.P5, this writ petition has been filed by both of them praying to direct the respondents to retain the petitioners at the CISF Units, at FACT Udyogamandal and Cochin International Airport Ltd., Nedumbassery. 4. The learned counsel for the petitioners contended that the posting of the 2nd petitioner to NDRF Battalion, Arakkonam is in violation of the provisions contained in the Disaster Management Act, 2005, and the Disaster Management (National Disaster Response Force) Rules, 2008. According to him, the Act and the Rules contemplate only deputation of personnel from Central Para Military Forces to NDRF and that such deputation can only be with the consent of the person deputed to NDRF. It is contended that the 2nd petitioner did not consent for his deputation and therefore his 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 petitioner to NDRF Battalion, Arakkonam and the posting of the 1st petitioner to RTC, Arakkonam, is in violation of Ext.P1guidelines governing posting of husband and wife on transfer at the same station, and Ext.P2 circular No.13/09, the guidelines governing transfer of CISF personnel. 5. In the affidavits filed, the respondents are seeking to justify the posting of the 2nd petitioner to NDRF Battalion, Arakkonam mainly contending that his posting is by way of transfer and that the same was necessitated in the exigencies of service. It is submitted that the NDRF was initially a part of the CISF, and is still under the administrative control of the Director General of CISF. It is submitted that it was in order to redress the grievance of the 2nd petitioner that his wife should also be posted at the same station, that the 1st petitioner was ordered to be posted at RTC, Arakkonam and therefore there is no violation of Exts.P1 and P2 guidelines. They have also stated that the grievance of the petitioners 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 learned counsel for the petitioners, the first contention is raised relying on the provisions contained in the Disaster Management Act, 2005, and the Disaster Management (National Disaster Response Force) Rules, 2008. National Disaster Response Force has been constituted as per Sections 44 & 45 occurring in chapter VIII of the Act, which are extracted for reference. “44. National Disaster Response Force:- (1)There shall be constituted a National Disaster Response Force for the purpose of specialist response to a threatening disaster situation or disaster. (2) Subject to the provisions of this Act, the Force shall be constituted in such manner and, the conditions of service of the members of the Force, including disciplinary provisions therefor, be such as may be prescribed. 45. Control direction, etc.-: The general superintendence, direction and control of the Force shall be vested and exercised by the National Authority and the command and supervision of the Force shall vest in an officer to be appointed by the Central Government as the Director General of the National Disaster Response Force. WP(C) No.21237/2009 -5- 7. The expressions “National Authority” and “Central Government” occurring in Section 46 of the Act have been defined in Sections 2(j) and 2(c) respectively. “National Authority” is defined as the National Disaster Management Authority established under section 3(1) of the Act, and “Central Government” is defined as the Ministry or Department of the Government of India having administrative control of disaster management. 8. Section 75 of the Act confers power on the Central Government to make Rules by notification in the official gazette for carrying out the purposes of the Act. Section 75(2)(f) provides that such rules may provide for the manner of constitution of NDRF, the conditions of service of members of the Force, including disciplinary provisions under Section 44(2) of the Act. In exercise of the powers conferred under Section 75(2)(f) of the Act, the Central Government made the Disaster Management (National Disaster Response Force) Rules, 2008. This Rule has been published in the Gazette of India, extraordinary, dated 14/02/2008 by the Ministry of Home Affairs, being the Ministry having administrative control of disaster management. WP(C) No.21237/2009 -6- 9. Rule 3 of the Rules, providing for the constitution of the NDRF, reads as under:- “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 1/15/2002-DM- 1/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 organisations or on contract basis. (3) The personnel of a battalion deputed to the National Disaster Response Force under these rules shall remain ordinarily in such battalion for a period of five years: Provided that not more than twenty-five per cent of the Force may be replaced in one year.” A reading of this Rule shows that the Central Government may in consultation 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 for the purposes of disaster management. The expression “Central Para Military Force” has been defined in Rule 2(c), and the Central Industrial Security Force constituted under the Central Industrial Security 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 the National Authority, and Rule 6 provides that the terms and conditions of service including disciplinary powers relating to personnel deputed from the Central Para Military Forces to NDRF shall continue to be regulated by the provisions of the Act and the Rules applicable to the respective Force and its services. 11. A reading of the aforesaid provisions contained in the Act and the Rules noticed above would show that the NDRF is a service or cadre, distinct and different from Central Para Military Forces, and that the Rule making authority has provided deputation as the method for posting personnel to NDRF and that those deputed 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 they are deputed. 12. The concept of deputation as understood in service law means service outside the cadre or outside the parent department. Where an employee is deputed to a post outside his cadre, that is to say, to another department on a temporary basis, and after the expiry of the period, the employee has to come back to his parent department, the employee is said to be on deputation. Further there can be no deputation without the consent of the person to be deputed. It has been held by the Apex Court that deputation can aptly be described as an assignment of an employee, commonly referred to as deputationist, of one department, cadre or an organisation, to another department, cadre or organisation, commonly referred to as the borrowing authority. The concept of deputation has been accepted as consensual, involving a voluntary decision of employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer, involving consent of the employee to go on deputation or not. 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), Umapati Choudhary v. State of Bihar and Another (1999 (4) SCC 659). As against this, the broader concept of “transfer” has been held to be a change in the place of employment within an Organisation (State or Rajasthan and Others v. Anand Prakash Solanki (2003(7) SCC 403). The Apex Court has, also held that there exists a distinction between 'transfer' and 'deputation'. It has been held that while deputation connotes service outside the cadre or parent department in which the employee is serving, transfer is limited to an equivalent post in the same cadre and in the same department. Further, deputation has been held to be a temporary phenomenon and that transfer being its antithesis, must exhibit the opposite indications. [See Prasar Bharati and Others v. Amarjeet Singh and Others (2007(9) SCC 539]. 13. In this case, the petitioners belong to CISF governed by the Central Industrial Security Force Act. NDRF, is another service constituted under the Disaster Management (National Disaster Response Force) Rules, 2008, framed under the Disaster Management 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, and the factual position that CISF and NDRF are different services, I must hold that deputation is the only permissible method to post personnel to NDRF and that transfer of personnel from CISF to NDRF is impermissible. It was therefore that the legislature has consciously prescribed deputation as the sole method for posting to the NDRF, and that too, complying with the manner and conditions specified in Rule 3 of the Rules referred to above. In this case, the 2nd petitioner has not consented for deputation, which is the only method prescribed under the Rules. There is also nothing on record to indicate that the requirements of Rule 3(2) have been complied with. If that be so, the impugned order posting the 2nd petitioner to the NDRF Battalion, Arakkonam is illegal, and cannot be sustained. 14. Since I have found that the method of posting to the NDRF Battalion is only by way of deputation, an examination of the impact of Exts.P1 & P2 is not of any relevance. This is for the reason 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 be posted 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 2nd petitioner'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 at the NDRF Battalion, Arakkonam is illegal, and is set aside. The respondents are directed to retain the 2nd petitioner at the Cochin International Airport Ltd., Nedumbassery, and the 1st petitioner at CISF Unit, FACT, Udyogamandal, from where she was posted to RTC, Arakkonam. This writ petition is disposed of with the aforesaid directions. (ANTONY DOMINIC, JUDGE) jg