Officers on ‘deputation’ not to be included in the new pay regime. But does a posting to AR, MES, BRO, etc qualify as ‘deputation’ ? No it does not

By now readers must be aware of the rider of the new scale for Lt Cols not being applicable to those officers who are on deputation to other organisations.

While clearly stating that in the future Lt Cols would not be sent on deputation to other organisations, the directions from the PMO ordain that “Lt Colonels on deputation may be given PB4 and Grade Pay of Rs 8000 only when they return from deputation to their parent service”

But what is ‘deputation’ you may ask. Well, in the civil parlance, deputation is an inter-se voluntary arrangement between two departments with the consent of the concerned employee wherein there are three players - there is a lending department, a borrowing department and a consenting employee.

Postings to Assam Rifles, Military Engineering Services, National Cadet Corps etc neither fulfil the above criterion nor involve any kind of voluntariness of officers. In my humble opinion, though sometimes (for convenience) termed as ‘deputation’, such postings are not so since there is no consent of employees involved in these. Officers are posted out by the MS branch based on administrative convenience and based on the number of vacancies and there is no willingness involved. Had these postings been optional or voluntary and that too on posts with lower GP, then the stipulation could have been applied to such officers. The stipulation of lower GP to deputationists can, in my humble opinion, be only applied to officers who in response to advertisements or departmental requisitions volunteer to opt for deputation. A close example would be deputation to organisations such as RAW wherein senior officers have traditionally been deputed to lower posts. In such a case, when an officer is himself or herself volunteering to proceed on deputation to a lower appointment after being made aware of the scale and the corresponding ‘pitfalls’, the stipulation of application of a lower GP may be perfectly valid. Postings to even outside organisations such as Assam Rifles (Ministry of Home Affairs), Border Roads Organisation (Ministry of Road Transport & Highways), National Cadet Corps (Ministry of HRD) may be colloquially and commonly referred to as ‘deputation’ within military circles but actually and technically these are not deputations but transfer-appointments made under Regulation 99 of the Defence Services Regulations (DSR-Regulations for the Army, 1987). The said Regulation does NOT even remotely refer to the term ‘deputation’.

How have Hon’ble Courts defined ‘deputation’ ?

The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer – it also involves the consent of the employee to go on deputation or not : The Hon’ble Supreme Court in Umapati Chowdhary Vs State of Bihar (1999) / Citation AIR 1999(SC) 1948

Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post : The Hon’ble Supreme Court in State of Punjab Vs Inder Singh and others (1998) / Citation AIR 1998(SC)7

A deputation subsists so long as the parties to this tripartite arrangement do not abrogate it. However , if any one of the parties repudiate the agreement, the other two have no legally enforceable right to insist upon continuance of deputation : The Hon’ble Punjab & Haryana High Court in Gurinder Pal Singh Vs State of Punjab (2005) / Citation 2005(1)RSJ 340

An Army officer can be posted to Assam Rifles without his consent : The Hon’ble Delhi High Court in Lt Gen VP Airy Vs Union of India (1993) / Citation 1993LabIC565

The pattern of postings of defence officers to such organisations would hence reveal that such appointments are not consensual, voluntary or optional but mandatory and obligatorily enforced under Regulation 99 of DSR and which a person cannot refuse. Hence in my humble opinion, the stipulation of the new pay regime not being made applicable to deputationists cannot include such postings which are compulsorily executed but can only be imposed on posts on which the officers have themselves voluntarily proceeded on deputation. Postings to AR, MES, BRO, NCC etc do not qualify as ‘deputation’ posts as held and defined by Hon’ble Courts of Law including the Hon’ble Apex Court.

The new pay scale hence to my mind and personal opinion, can only be refused to those who have voluntarily proceeded on lower JAG level posts and not to those who have been posted to various appointments by the organisation under the authority of Regulation 99. The new scale should hence logically apply to every single Lt Col and equivalent in the three services except officers who have voluntarily on their own asking proceeded on deputation to lower posts and the only officers who can be excluded are perhaps MNS officers and Whole Time Commissioned Officers of the NCC who by nature of their duties are non-combatants. One cannot, should not and perhaps would not be denied a benefit on the basis of a posting on which he or she had no control.