Parent And Borrowing Dept Bound By Terms Of Deputation: Bombay HC Holds Reduction In Foreign Allowance Of Officer Deputed To Maldives Illegal

The Bombay High Court recently observed that the terms of appointment by deputation not only bind the employee but also the parent and borrowing departments, and any reduction in the entitlements agreed upon at the time of deputation would be illegal.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor, set aside the reduction in Foreign Allowance two years after the deputation of an officer in Male, Maldives.

“any reduction in the said amount will amount to violation of the terms and conditions on which the petitioner's appointment on deputation was made as an expert at IGMH at Male (Maldives). The terms, on which an order of appointment of deputation of an employee is made, does not bind the employee alone; the parent department as also the borrowing department are equally bound by such terms.”

The court directed the Ministry of External Affairs to pay one Basant Kumar Bihani the difference between the originally agreed upon foreign allowance and the reduced foreign allowance along with 6 percent simple interest within three months.

Bihani, a member of the Indian Railway Personnel Service (IRPS), was appointed on deputation as Deputy Director (Administration) to the Indira Gandhi Memorial Hospital at Male (Maldives) in 1993 for three years. The appointment, made under the Indian Technical and Economic Cooperation Programme program, was based on certain terms and conditions. These terms included provisions for fully furnished accommodation and electricity and water by the Government of Maldives.

According to the terms, Bihani was also entitled to draw Foreign Allowance at the rates fixed for the country of assignment by the MEA from time to time. MEA had in 1989 fixed this allowance to be equivalent to what was applicable to a Second Secretary level officer working in the Indian Mission in Maldives.

A government order dated September 4, 1995, revised the rate of Foreign Allowance payable to employees on deputation in the ITEC programme in Maldives. This order resulted in a reduction in the Foreign Allowance received by Bihani.

After various rounds of litigation in Central Administrative Tribunal, Bihani approached the Bombay High Court challenging the reduction in his Foreign Allowance. Bihani challenged the 1995 Government Order, as well as CAT judgments upholding the reduction.

Bihani contended that the reduction in his Foreign Allowance, as stipulated in the 1995 order, was unjustified and contrary to the terms of his deputation.

The MEA cited recommendation from the Foreign Service Inspectors (FSI) that since the Government of Maldives provided certain facilities like free accommodation, medical, and local transport, the foreign allowance and compensation related to electricity and water should not be included.

The court observed that deputation is a mode of appointment that requires the consent and agreement of three parties: the parent department, the borrowing department, and the employee concerned. It emphasized that without the consent and agreement of all three parties, an appointment on deputation would not be permissible.

The court highlighted that the employee's consent to the terms of deputation is based on the representations and assurances made at the time of appointment. Thus, once an employee accepts the terms and conditions and consents to an appointment on deputation, any deviation from these agreed-upon terms would not be permissible, the court stated.

The court concluded that any reduction in the entitlements, such as Foreign Allowance, which were agreed upon at the time of deputation, would amount to a violation of the terms and conditions of deputation and would be illegal and impermissible.

Thus, the court held that Bihani was entitled to the same Foreign Allowance as an officer of equivalent rank in the Indian Mission, as per the terms of his appointment. It deemed any reduction in this allowance as a violation of these terms.

The court quashed the CAT orders and the government order rejecting the petitioner's claim for foreign allowance. The court also quashed the 1995 government order that reduced his Foreign Allowance, to the extent that it affects the petitioner.

Case no. – Writ Petition No. 11415 of 2014

Case Title – Basant Kumar Bihani v. Union of India

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