Gauhati High Court
Gs-180321X - Rajesh Kumar & 3 Ors vs Union Of India & 2 Ors on 21 February, 2017
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(EXTRAORDINARY WRIT JURISDICTION)
WP(C) Nos. 31/2017, 32/2017, 319/2017,
349/2017 and 981/2017.
1. WP(C) No.31 of 2017
GS -180321X- Rajesh Kumar & 3 others .... Petitioners
-Versus-
The Union of India & 2 others. ... ... Respondents
2. WP(C) No.32 of 2017 GS -192203W - Rohit Raman & 6 others .... Petitioners
-Versus-
The Union of India & 2 others. ... ... Respondents
3. WP(C) No.319 of 2017
GS -193312P - Sujit Chaudhury & 2 others .... Petitioners
-Versus-
The Union of India & 2 others. ... ... Respondents
4. WP(C) No.349 of 2017
GS -192257X - Md. Hasim Ansari & 3 others .... Petitioners
-Versus-
The Union of India & 2 others. ... ... Respondents
WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 1 of 19
5. WP(C) No.981 of 2017
GS -189803N - Sudhish Ranjan & 12 others .... Petitioners
-Versus-
The Union of India & 2 others. ... ... Respondents
BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
For the petitioners : Mr. D. Borah, Advocate.
For the respondents : Mr. S. C. Keyal,
Asstt. Solicitor General of India.
Mr. Y. Doloi, Central Govt. Counsel.
Date of hearing : 21.02.2017.
Date of Judgment : 21.02.2017.
JUDGMENT AND ORDER (Oral)
1. Heard Mr. D. Borah, learned counsel for the wit petitioners. Also heard Mr. S. C. Keyal, learned Assistant Solicitor General of India as well as Mr. Y. Doloi, learned Central Govt. Counsel, appearing on behalf of all the respondents.
2. Since a common question of law arises in this batch of writ petitions, hence, I propose to dispose of the same by this common judgment.
3. The writ petitioners, numbering 31 in total, are all working as Stenographer-B/Lower Division Clerk (LDC) in the Border Roads WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 2 of 19 Organization (BRO) in its unit commonly known as General Reserve Engineering Force (GREF). The petitioners are presently posted at Tezpur, Assam . The posts held by the writ petitioners are in the Grade- III category of service under the respondents. On 24.10.2016 the Commissioner, Coal Mines Provident Fund Organization had issued circular inviting applications for filling up a number of posts in the category of Stenographer Grade-III/Lower Division Clerk/Hindi Typist by way of transfer of service from other departments. As per clause- 2 of the circular dated 24.10.2016, the names of the officials who are willing to join that office on transfer of service basis and who could be spared by their department were required to be sent along with their Bio-data in the enclosed Format with an attested copy of ACR for last five years, current Vigilance Clearance Certificate and No Objection Certificate (NOC) issued by their employer. Accordingly, some of the petitioners had applied before the respondents seeking vigilance clearance certificate and also No Objection Certificate (NOC) so as to enable them to join the Coal Mines Provident Fund Organization as per the circular dated 24.10.2016 but the request made by some of the petitioners have been turned down by the respondents on the ground that there was deficiency of staff in the organization and the petitioners had not put in 20 years of service so as to enable them to seek outside employment as per the policy decision notified by the circular dated 01.08.2016. Being aggrieved by such stand adopted by the respondents , these writ petitions have been filed, inter alia, WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 3 of 19 seeking a writ of mandamus directing the respondents to issue the Vigilance Clearance Certificate and NOC in favour of the petitioners.
4. The respondents have filed an affidavit-in-opposition covering all the writ petitions thereby stating that as per the policy decision of the Border Roads Organization under the Ministry of Defense , where the deficiency in service is more than 10% , such category of posts are not open for deputation/outside employment. As per the circular dated 01-08-2016, only those personnel, who have completed 20 years of service, are permitted to avail deputation/outside employment regardless of the deficiency. Such a measure has been adopted in order to ensure that the sensitive nature of works undertaken by the BRO in the border areas is not affected by bulk exodus of employees at a short notice. It has, however, been mentioned in the affidavit at paragraph 7 that there is no restriction on an individual resigning from service to avail better employment opportunities outside the department.
5. Mr. Borah, learned counsel for the petitioners, submits that the notification dated 01.08.2016 imposing restrictions on deputation/ transfer employment in case of subordinate employees who have put in less than 20 years of service is arbitrary and discriminatory inasmuch as the Service Rules governing the conditions of service of the writ petitioners does not lay down any such condition. Over and above WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 4 of 19 that, submits Mr. Borah, the respondents have dispensed with the requirement of 20 years of service in case of all officers from the rank of Junior Engineer and above thereby meting out a discriminatory treatment to the subordinate staff like the writ petitioners.
6. By referring to the pleadings contained in the writ petition, Mr. Borah has submitted that in utter defiance of the DoPT guidelines of the Government of India as well as the Sixth Pay Commission recommendations, the respondents have failed to carry out proper cadre review in the department as a result of which the promotional avenue in the department has all but diminished to the detriment of the interest of the employees such as the petitioners, prompting them to seek better career avenues outside the BRO. The learned counsel further submits that due to such apathy shown by the respondent authorities, it would take more than 34 years for a LDC to get promoted to next higher grade of UDC, thus defeating the fundamental right of the petitioners for being considered for promotion within a reasonable time.
7. Referring to the circular dated 23.12.2013 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training),(DoPT) Government of India, Mr. Borah submits that the DoPT, which is the nodal agency in the matter of laying down guidelines in such matters, the circumstances under which the application of a Government servant for appointment by direct recruitment, transfer on deputation or transfer to any other post should WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 5 of 19 not be considered/forwarded have been notified and according to Mr. Borah, none of the grounds mentioned therein is attracted to the facts and circumstances of the present case. As a matter of fact, submits Mr. Borah, the instructions contained in clause- 2 of the guidelines dated 23.12.2013 makes it clear that forwarding of applications should be the rule rather than exception. As per the said instruction, ordinarily, every employee should be permitted to apply for an outside post even though he may be holding a permanent post.
8. To fortify his above argument, Mr. Borah has also referred to a judgment rendered by the Division Bench of this Court dated 25.01.2016 in connection with Writ Appeal No.324/2015 [Sri Swapan Kumar Mallik vs. The Union of India and others] to contend that deficiency of a particular class of employees cannot be a ground to refuse permission/NOC to an employee to seek better employment outside the organization as such a measure would amount to violation of fundamental right of the employees guaranteed under the Constitution of India. Mr. Borah further submits that relying upon the judgment and order dated 25.01.2016 passed by the Division Bench, the learned Single Judge of this Court had also passed subsequent orders dated 14.09.2016 in connection with WP(C) No.3981/2014 and 07.11.2016 in connection with WP(C) No.6734/2016 issuing direction to the respondents to issue NOC to similarly situated applicants and the respondents have since complied with such directions passed by this WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 6 of 19 Court. Under the circumstances, submits Mr. Borah, the issue involved in the present batch of writ petitions is covered by the aforementioned judgment and orders passed by this Court and therefore, the present batch of writ petitions also warrant disposal in the line of the earlier orders passed by this Court.
9. Resisting the arguments advanced on behalf of the writ petitioners, Mr. Keyal, learned Assistant Solicitor General of India, submits that the department has been facing bulk exodus in the category of Grade-III employees in the recent past which has had a crippling effect on the administrative set up of the organization compelling the authorities to take a policy decision to permit only those candidates who have completed 20 years of service in the organization to go on deputation/transfer of service. He submits that the BRO is called upon to execute strategic work in the border areas for the Defense Force, and due to outward movement of departmental personnel on deputation/ transfer of service, important strategic work is being hampered. Such a policy decision has been taken in the interest of the department keeping in view its internal requirements and therefore, in exercise of power of judicial review under Article 226 of the Constitution, this Court may not interfere with such policy decision merely because the same works adverse to the interest of the writ petitioners. Mr. Keyal has also made an attempt to distinguish the judgment and order dated 25.01.2016 passed by the WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 7 of 19 Division Bench by contending that the said decision was rendered in completely different fact situation.
10. By referring to the documents enclosed to the counter-affidavit filed by the Union of India, Mr. Keyal has invited the attention of this Court to the judgment and orders passed by the High Court of Judicature of Delhi and of the Punjab and Haryana High Court to contend that similar plea seeking deputation employment outside the parent organization had been rejected by the Courts on the grounds and reasons mentioned therein.
11. I have considered the submissions made by the learned counsel for both parties and have also perused the materials available on record.
12. At the very outset, it requires to be mentioned here-in that the entire controversy involved in the present batch of writ petitions has its root in the circular dated 01-08-2016 issued by the BRO permitting only those GREF subordinate staff to seek outside employment that have completed more than 20 years of service in the department, irrespective of vacancies. The circular dated 01-08-2016 supersedes the earlier Notification dated 08-07-2015 under which, Personnel who had completed 10 years of service under the BRO were only allowed to apply for outside employment/ permanent absorption/ inter- departmental transfer subject, however, to the condition that the WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 8 of 19 over-all deficiency was less than 10% of the authorized strength in the category of posts. By the circular dated 08-07-2015, the earlier decision to impose a complete ban on outside employment for all categories had been reviewed by the authority in the above manner.
13. Record reveals that immediately preceding the issuance of the circular dated 01-08-2016 (Annexure P/5), a tour note pertaining to the visit of the Director General (DGBR) to Project Himank was issued, which contains a comment by the Departmental Head to issue NOC to GREF personnel for joining other department as the Organization does "not want to retain un-willing workers". However, soon thereafter, the impugned circular was issued on 01-08-2016 imposing the restriction of 20 years of service upon all employees seeking employment outside the department.
14. By issuing the circular dated 24.10.2016, the Coal Mines Provident Fund Organization had invited applications for filling up 08 posts of Stenographer Grade-III, 176 posts of Lower Division Clerk and 17 posts of Hindi Typist. Clause- 2 of the circular would be relevant for the purpose of deciding the core issue in these proceedings and is therefore, quoted herein below for ready reference :-
"2. Name of the officials who are willing to join this office on transfer of service basis from your department and who can be spared may be sent to this office as per Bio-data in the enclosed format along with attested copy of ACR for last five years, current vigilance Clearance Certificate and No Objection Certificate."WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 9 of 19
From a bare reading of the aforesaid clause it is apparent that the intake mechanism envisaged by the circular dated 24.10.2016 is based on tripartite consent of the borrowing department, the parent department and the employee. The fact that the consent of the lending department i.e. in this case the Border Roads Organisation would be a sine qua non for entertaining an application is duly emphasized by use of the expression "who can be spared" in the clause-2. What essentially follows from a plain reading of the aforesaid clause is that in the absence of consent/ NOC given by the BRO, none of the writ petitioners would be entitled to join in any of the posts mentioned in the circular dated 24-10-2016.
15. From a scrutiny of the materials available on record, I find that some of the petitioner had applied through proper channel by submitting application for absorption on transfer service basis under the Coal Mines Provident Fund Organization but the respondents had rejected their request. From a perusal of the letter dated 21-12-2016 issued to one of the petitioner, Viz. Steno "B" Rajesh Kumar, it can be seen that his request was rejected on the twin grounds that he has not completed 20 years of service in the department and that there was deficiency of about 14.47 % of Steno B in the department as on 31-10- 2016. It appears that the request made by the other candidates were also turned down on similar grounds as a result of which, some of them had submitted their candidature on the basis of a provisional NOC WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 10 of 19 issued by the department based on interim orders passed by this Court. From the above, it is obvious that the sole objective behind the policy decision debarring outside employment for personnel who had not completed 20 years of service in the BRO was to arrest the seemingly high rate of attrition of its employees. But what would be significant to note here-in that by the circular dated 01-08-2016 a ridder of 20 years of service has been imposed only in case of the subordinate staff whereas the Officers belonging to the Group "A" and "B" categories have been exempted.
16. The issue of refusing NOC on the ground of ban in outside employment had come up for consideration before this court in the case of Sri Swapan Kumar Mallik (supra). In that case, the applicant, who was working as an Executive Engineer (Civil) under the BRO, went on deputation as Deputy General Manager (Technical ) under the NHAI with the consent of the BRO. While serving in the said post, he became eligible for applying for absorption in the post of Deputy General Manager (Technical ) on permanent basis and accordingly applied for the said post for better advancement of his career. The applicant was offered appointment on absorption basis vide appointment order dated 30-07-2013, which was, however, subject to the condition that he would produce a NOC from his parent department i.e. the BRO. But the request for NOC was rejected by the BRO authorities on the ground that there was a ban in force preventing the department from forwarding the application for WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 11 of 19 outside employment/absorption/ inter-departmental transfer due to deficiency of staff. While rejecting the stand of the department (BRO) the Division Bench of this Court had made the following observations :-
"18. The contentions raised by Mr. S.C. Keyal, the learned ASG appearing for the BRO authorities, in defending the impugned actions of the BRO authorities are that the BRO authorities in refusing to issue the NOC took into account are three factors, namely, (i) there was ban on outside employment/absorption/transfer in the organization; (ii) the certificate dated 18-5-1999 issued by him prior to his leaving on deputation acknowledging that the maximum period of his deputation was four years and that he should revert to his parent department on the expiry of four years/approved deputation period (iii) the undertaking signed by him on the same day that overstayal on deputation beyond the sanction period would be treated as dies non and that he understood the consequences of it. In so far as the excuse about ban on outside employment is concerned, Clause 14(a) of the Recruitment Rules (?) at Annexure/R-1 of the rejoinder affidavit of the appellant provides that in case of deficiency in the respective cadre, ban on outside employment would be imposed, if the overall cadre deficiency including that of service Officers is greater than 15 percent. From the chart given by the appellant in para 4(h) of the same rejoinder affidavit, it would appear that the cadre deficiency for Executive Engineer (Civil) in the BRO is 1.03% and 2.57% as on 1-1-2014 and 1- 1-2015 respectively. It is also stated by the appellant in the same para that the sanctioned/authorized strength of Executive Engineer (Civil) in the BRO is 194 and as per the Master Seniority List as on 1-1-
2014, out of 194 sanctioned posts, 192 posts are filled up by WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 12 of 19 Executive Engineer (Civil) personnel. The affidavit further goes on to state that as per the MSL dated 1-1-2015, 189 post are filled up by Executive Engineer (Civil) personnel, the reduction of the posts by three is not due to some Executive Engineer (Civil) leaving the BRO but due to normal promotions granted to them to the posts of Superintending Engineer (Civil) and, as such, there is no critical deficiency as claimed by the BRO authorities. No rebuttal to these categorical statements of the appellant is made by the BRO authorities. This goes to show that there is no cadre deficiency for refusing the NOC to the appellant. In case there happens to be any deficiency of a particular rank/class of employees, it is for the BRO authorities to take appropriate action to fill the vacancies, but that can hardly be a ground to refuse permission/NOC, particularly, when the appellant has also fulfilled the conditions for technical resignation. In the absence of effective rebuttal, we hold that the refusal of the BRO authorities to grant NOC to the appellant on the ground of ban on outside employment/absorption ill-conceived, arbitrary, smacks of malice in law and contravenes his fundamental rights guaranteed under Articles 14 and 19 of the Constitution."
17. In the case of Swapan Kumar Mallik (supra) the Division Bench was of the view that there was no deficiency in the cadre of Executive Engineer (civil) at the relevant point of time and that the appellant was entitled to tender his "technical resignation" as per rules, the acceptance of which was a mere formality. Moreover, the initial deputation of the appellant was also with the consent of the department. In the present case, the writ petitioners have not been able to establish that there was no deficiency in the Cadre of Steno- WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 13 of 19 B. The decision in the case of Swapan Kumar Mallik (supra), therefore, would have to be held to have been rendered in the facts of that case.
18. A reading of the circular date 01-08-2016 goes to show that the same has been made applicable to the GREF subordinate staff only. If the basic ground on which the policy decision has been taken is to ensure that due to outward movement of the GREF personnel at short notice, the work of the BRO does not suffer, it is not understood as to how such an objective can be meet by adopting a different approach towards the GREF Engineers who have a equally, if not more, important role to play in completion of each project.
19. In the above context, it may be mentioned here-in that by relying upon the Division Bench Judgment in the case of Swapan Kumar Mallik (supra) the learned Single Judge of this court had passed orders dated 14.09.2016 in WP(C) No.3981/2014 and 07.11.2016 in WP(C) No.6734/2016 issuing direction upon the respondents to issue NOC to Junior Engineer (Civil) working under the BRO and the respondents have since complied with such directions passed by this Court. The respondents have not denied that fact that no appeal has been preferred against the aforesaid orders passed by the learned Single Judge on the ground that the applicants were all Junior Engineers. However, materials on record are not sufficient for this court to appreciate the facts and circumstances under which WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 14 of 19 those orders had been passed by the learned Single Judge so as to hold that the present cases are also covered by the said orders.
20. Record reveals that most of the GREF employees seeking out- side employment is doing so for the purpose of seeking better career options. The petitioners here-in are also desirous of seeking employment outside the BRO in pursuit of better career options, if not in terms of pay structure, atleast in terms of better promotional avenues. All employees under BRO stand in equal footing in so far as their right to seek better employment opportunity outside the department is concerned. There is no intelligible differentia visible on record so as to extend a differential treatment to the Subordinate Staff by recognizing a better right of the Officers in that regard. As such, the respondent could not have framed a separate policy insisting on 20 years of service before permitting them to apply for out-side employment only in case of a particular category of employees. It appears that the BRO has also not obtained the approval of the concerned Ministry before imposing such a ban of 20 years on outside employment upon a particular category of employees. Under the circumstances, this court is constrained to hold that the policy decision of the BRO imposing a restriction only on the subordinate staff denying them NOC for outside employment prior to completion of 20 years of service, on the face of it, is discriminatory and hence, in clear violation of the fundamental rights of the petitioners guaranteed under Articles 14 , 16 (1) and 19 of the Constitution.
WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 15 of 19
21. There can be no denying the fact that the BRO authorities are usually called upon to perform the difficult task of preparing border roads in a time bound manner, especially for the use of the armed forces, who are engaged in the work of guarding the frontiers of our country. The nature of task performed by the BRO places the department in a different footing from many other Government of India Enterprises. Therefore, it is quite possible that large scale exodus of its employees at a short notice may seriously jeopardize its projects and in such a case, the BRO would be justified in refusing to forward applications for deputation/ transfer of service to outside employment. In a given case, even dehors the policy decision, it would be open for the BRO authorities to refuse NOC for outside employment if the department is of the view that such a stand would be necessary in public interest as well as in the interest of the department. However, such a decision would have to be taken depending on the attending facts and circumstances of each case and not on the basis of a blanket ban.
22. In the present case, a categorical averment has been made in the rejoinder affidavit filed by the writ petitioners to the affect that most of them are subscribers to the NPS scheme and would therefore, not be entitled to pension. As such, they would be entitled to leave the organization at any time by giving three month Notice. A reading of the clause -8 of the circular dated 24-10-2016 goes to show that the past service of the departmental candidates will not be counted for WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 16 of 19 determining seniority , leave etc. but shall only be reckoned for grant of pensionery benefits subject to submission of pro-rata pension contribution. From the above, it is thus apparent that for those candidates who are members of the NPS, they would not be entitled to any benefit for their previous service and therefore, resignation from service for them would be nothing but a mere technical formality.
23. Coming to the question of rights of the present petitioners to seek employment outside the department, as has been held by the Division Bench in the case of Swapan Kumar Mallik (supra), having voluntarily joined service under the BRO, their rights under Article 19(1)(g) would be subject to reasonable restrictions. The petitioners cannot, therefore, claim to have any enforceable right to have their applications forwarded for outside employment at their will and the department would be entitled to refuse such a prayer for good and sufficient reason. What would, however, be relevant in such cases is whether there was good and sufficient ground available for refusing the request made by an employee to forward his application for outside employment.
24. In the present case, the respondents have succeeded in showing that the deficiency of staff was more than 10 % and therefore, forwarding the applications of the petitioners would be detrimental to the interest of the department . The petitioners have not been able to lay any material to dispute the said factual position. Having regard to the material available on record I am of the view WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 17 of 19 that there was sufficient ground for the respondents to refuse the requests made by the writ petitioners for forwarding their application for absorption under the Coal Mines Provident Fund Organization on transfer of service basis and the respondents cannot be faulted for the same.
25. The matter would, however, be entirely different if the petitioners choose to resign from their jobs and join the new employment. In such cases, in the absence of any departmental proceeding pending against the petitioners or any penalty imposed upon them , the authorities would be obliged to issue them the NOC unless there is any contrary provision in the service Rules. If the dis- satisfied employees want to leave the organization due to lack of career advancement opportunities, it would be a matter entirely for the department to address. But the BRO cannot compel any unwilling employee to continue in service against his wishes.
26. In view of the pleaded stand of the respondents that the writ petitioners are at liberty to leave the organization by submitting their resignation, the respondents would be obliged to issue the Vigilance Clearance Certificate and the NOC to the writ petitioners if they resign from their present jobs. In any event, in view of clause -8 of the circular dated 24-10-2016, the petitioners would not be entitled to any credit for their past service except for pensionery benefit applicable in cases of those employees not covered under NPS.
WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 18 of 19
27. In the light of the discussion made above, these writ petitions are disposed of by directing the respondents to forthwith forward the applications along with Vigilance Clearance Certificates / NOC in respect of those petitioners who have already applied through proper channel, permitting them to join the Coal Mines Provident Fund Organization, subject to the condition that they submit resignation in their present job under the BRO.
The writ petitions are accordingly disposed of.
No order as to cost.
JUDGE T U Choudhury WP(C) Nos.31/2017, 32/2017, 319/2017, 349/20917 & 981/2017 Page 19 of 19