Rajasthan High Court - Jodhpur
Pankaj Kumar vs State & Ors on 17 November, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6033 / 2016
Pankaj Kumar S/o Shri Mana Ramji, Aged about 33 yers, R/o E-
15, Rajuvas Staff Colony, No.1, Bikaner (Raj).
----Petitioner
Versus
1. The State of Rajasthan through the Secretary, Department of
Animal Husbandary and Dairying, Government of Rajasthan,
Jaipur.
2. The Registrar, Rajasthan University of Veterinary and Animal
Sciences, Bikaner- (Raj).
3. The Registrar, Lala Lajpat Rai University of Veterinary and
Animal Sciences, Hisar (Haryana.).
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Kuldeep Mathur
Mr. Vinod Choudhary
For Respondent(s) : Mr. D.S. Rajvi
Mr. L.R. Bishoni
_____________________________________________________
JUSTICE DINESH MEHTA
Judgment
17/11/2017
By way of filing the present writ petition, the petitioner has
laid challenge to an order dated 08.12.2015, whereby respondent-
University has refused to grant 'No Objection Certificate'
(hereinafter referred to as "NOC") to the petitioner.
Shorn of unnecessary details, the facts appertain to the
present case are that the petitioner was selected for the post of
Assistant Professor (Veterinary and Animal Sciences) in the
Rajasthan University of Veterinary and Animal Sciences, Bikaner,
(2 of 6)
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Rajasthan (hereinafter referred to as 'Rajasthan University),
pursuant to the advertisement w.e.f. 26.02.2013.
After the due selection process, an appointment order dated
13.06.2014 came to be issued. While, the petitioner was on
probation, another advertisement No.01/2015 another vacancy for
the same post was notified by Lala Lajpat Rai University of
Veterinary and Animal Sciences, Hisar (hereinafter referred to as
"University at Hisar") vide advertisement No.1/2015.
The petitioner, finding the said post more beneficiary and
advantagious to him, decided to participate in the said selection
process, for which, he applied for grant of 'NOC' to the present
employer namely Rajasthan University which 'NOC' was a
precursor as per of condition No.4 of the instructions and
conditions appended with the said advertisement No.01/2015
issued by the University at Hisar. The condition No.4 of the
advertisement is reproduced hereunder for ready reference:-
"Candidates already in-service applying for the posts
at Sr. No. 1 to 13 must apply through proper channel
or produce "No Objection Certificate" from the
competent authority otherwise they will not be allowed
to appear in interview. They may, however, submit an
advance copy alongwith prescribed application
processing fee & self attested copies of all the
documents. The inservice candidates applying online,
for the post of Sr. No.14 should also apply through
proper channel."
(3 of 6)
[ CW-6033/2016]
Petitioner requested to the Registrar of the Rajasthan
University to issue a 'No Objection Certificate' vide his letter dated
22.11.2015 indicating that he wants to apply for the post
advertised by University at Hisar. The respondent No.2 - Registrar
University turned down petitioner's request vide his
communication dated 08.12.2015 observing that as the petitioner
has applied for the equivalent post, 'NOC' cannot be granted. It
would be apt to reproduce the relevant part of the order passed by
the respondent No.2, which runs as infra:-
^^mDr laca/k esa ys[k gS fd MkW- iadt dqekj vius orZeku in ds leku inksa gsrq
vkosnu fd;k gSA vr% muds vkosfnr vafdr inksa ds lk{kkRdkj gsrq vukifÙk izek.k i=
tkjh ugha fd;s tkus dk fu.kZ; fy;k x;k gSA**
Faced with such situation, the petitioner approached this
Court, invoking Article 226 of the Constitution of India. While,
issuing the notices on 25.05.2016; keeping in view the ensuing
interview scheduled on 01.06.2016, this Court had directed the
respondents to issue provisional 'NOC' to the petitioner, which was
however made subject to final disposal of the writ petition.
Mr. Kuldeep Mathur, learned counsel appearing for the
petitioner assailing the action of the respondent No.2 and his
order dated 08.12.2015 submitted that the order impugned is
unreasoned and irrationed on the one hand while fundamentally
against the rights of the petitioner guaranteed under Article 14 &
16 of the Constitution of India, on the other hand.
(4 of 6)
[ CW-6033/2016]
Per-contra, Mr. D.S. Rajvi, learned counsel appearing for the
respondents vehemently submitted that the order under challenge
passed by the University denying grant of 'NOC' to the petitioner
is perfectly just and valid. He argued that the petitioner had
applied for the equivalent post of Assistant Professor, as such, the
University did not accede to his request for grant of 'NOC'. Stating
the logic or rationale behind such denial, Mr. Rajvi, contended that
the University had advertised the post of Assistant Professor and
had undertaken exercise of selecting candidates, including
petitioner; who had been kept under probation. If the duly
selected candidates decide to leave the University in the
attempted to, it would cause administrative problem and
additional financial burden on the University. He further submitted
that University has been receiving such applications on earlier
occasions also, but the University had declined such requests on
the same reasons.
Heard learned counsel for the parties.
Continue to serve an employer or not to serve him, is a
discretion and sweet will of the employee. The respondent -
employer cannot act as a road block in the way of an employee
who treads for better future or alternative employment. An
employee has a discretion to opt any employer; guided by various
factors such as monetary benefits, future prospects or even,
proximity with native place etc.
The petitioner has clearly stated in his petition that the likely
emoluments and salary, which he would get at Hisar will be at
(5 of 6)
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least 25% more than what he has been getting with respondent
No.2.
The reason ascribed for declining petitioner's request, that
the petitioner is going on the equivalent post cannot be said to be
fair and rational. The respondents cannot refuse to grant of 'NOC'
to an employee, if he wishes to go on the equivalent post,
particularly in absence of such stipulation in his appointment
order. Restraining an employee from joining in other organization
is apparently oppressive and against Public Policy and section 27
of the Contract Act.
If a general principle of Common Law that a person is
entitled to exercise his lawful trade as and when he wills and the
law has always regarded jealously any interference with trade,
even at the risk of interference with freedom of contract as it is
Public Policy to oppose all restraints upon liberty of individual
action which are injurious to the interest of the State. This
principle is not confined to restraint of trade in the ordinary
meaning of the word trade and includes restraint on the right of
being employed. The Court takes a far stricter view of covenants
between master and servant than it does of similar covenants
between vendor and purchaser or in partnership agreements.[AIR
1967 (SC) 1098].
Respondent's stance that they have an objection for grant of
'NOC'; and if the petitioner wishes, he may very well resign from
the Rajasthan University and join at Hisar, is arbitrary and
vindictive. It is to be noticed that as obtaining 'NOC' is a precursor
(6 of 6)
[ CW-6033/2016]
as provided in condition No.4 of the advertisement and the same
has to be submitted alongwith the application form. No candidate
can take the risk of giving resignation before hand to apply in
other University, as suggested by the University.
Being mindful of such contingency, the University at Hisar
has only asked for 'NOC' and not relieving order from the earlier
employee, at the time of submitting application form.
The rejection of grant of 'NOC' is clearly violative of Articles
14 & 16 of the Constitution of India; for which the order impugned
dated 08.12.2015 is liable to be, and is hereby quashed.
As a result of quashment of the order dated 08.12.2015, the
provisional 'NOC' granted to the petitioner dated 25.05.2016 shall
be treated as absolute.
Needless to observe that as a result of acceptance of the
instant writ petition, the petitioner's employment with the
University at Hisar would be treated valid and legal.
The respondents shall however be free to recover the
amount or dues, if recoverable as per the terms of appointment
order.
(DINESH MEHTA), J.
Upendra/17