Gauhati High Court
Go-002874M Sri Punil Kumar vs The Union Of India And 5 Ors on 16 November, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010110322021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3443/2021
GO-002874M SRI PUNIL KUMAR
S/O. LT. RAM NARAYAN LAL, EXECUTIVE ENGINEER (C), OFFICE OF THE
HEAD QUARTER CHIEF ENGINEER (P) VARTAK, PIN-931716, C/O. 99 APO,
TEZPUR, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY JOINT SECRETARY (BORDER ROADS), MINISTRY OF DEFENCE
(EARLIER DESIGNATED AS SECRETARY (BRDB), ROOM NO.418, (B) WING
4TH FLOOR, SENA BHAWAN, NEW DELHI-110010.
2:DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
SEEMA SADAK BHAWAN
RING ROAD
DELHI CANTT. NEW DELHI-110010.
3:ADDL. DIRECTOR GENERAL (EAST)
BORDER ROADS ORGANIZATION
HQ ADGBR (EAST)
JALUKBARI
LANKESWAR
ASSAM
PIN-781014.
4:CHIEF ENGINEER (P) VARTAK
PIN-931716
C/O. 99 APO
Page No.# 2/7
TEZPUR
ASSAM.
5:THE CHAIRMAN
NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS
G-5 AND 6
SECTOR-10
DWARKA
NEW DELHI-110075.
6:CHIEF GENERAL MANAGER (HR/ADMN)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS
G-5 AND 6
SECTOR-10
DWARKA
NEW DELHI-110075
Advocate for the Petitioner : MR. D BORAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 16-11-2021 Heard Mr. D. Borah, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC appearing for the respondent Nos. 1 to 4 and Mr. C. Baruah, learned standing counsel for the respondent Nos. 5 & 6.
2. Being aggrieved by the impugned order dated 05.07.2021 whereby the application of the petitioner was returned, the petitioner has filed this writ petition under Article 226 of the Constitution of India.
3. The case projected by the petitioner is that pursuant to an advertisement dated Page No.# 3/7 02.01.2020, the petitioner, who was posted as Executive Engineer (Civil), Project Vartak in Border Roads Organisation (in short BRO) had applied for the post of General Manager (Tech), NHAI. By letter dated 20.11.2020, he applied for Vigilance Clearance Certificate and No Objection Certificate for applying for the said post before the Joint Secretary, Department of Defence and he had also submitted his application for deputation before the competent authority. Accordingly, the Joint Director (Admn), Border Roads had forwarded the application of the petitioner to the Headquarter Additional Director General of Border Roads (East), who in time forwarded the application of the petitioner to the Headquarter Director General of Border Roads. It appears from the letter dated 23.04.2021 that online application was submitted by the petitioner and accordingly, the authorities of NHAI had requested the Deputy Director General (Pers), Border Roads Organization for certain documents and particulars vide letter dated 03.06.2021. Repeated reminders were made before the officials of Border Roads Organization by the NHAI and by the petitioner and in the meanwhile, selection and verification process was completed and that the NHAI, by letter dated 25.06.2021 offered the petitioner appointment to the post of General Manager (Tech) on deputation basis and the offer letter was sent to the petitioner through the Deputy Director General (Pers) of Border Roads Organization, requesting the said authority to submit the requisite documents by 03.07.2021. A reminder letter dated 12.07.2021 to the same effect was also issued by the NHAI.
4. The learned counsel for the petitioner submits that by the impugned letter dated 05.07.2021, the Joint Director (Pers), on behalf of the Director General of Border Roads Organization, informed the Headquarter Chief Engineer (P) Vartak about Page No.# 4/7 returning of the application submitted by the petitioner. It is submitted that the copy of the said letter was actually served on the petitioner on 15.07.2021. The petitioner made a request for extension of time and accordingly, the NHAI had extended the time for submission of documents till 31.07.2021.
5. Mr. D. Borah, learned counsel for the petitioner further submits that the issue in hand is a covered matter, as the Division Bench of this Court in a similar case, has vide Order dated 02.09.2021 passed in W.A. No. 188/2021, directed the authorities in the Border Roads Organization to issue NOC to the writ petitioner in W.A. No. 188/2021, within a period of 15 days from the date of receipt of a certified copy of the order, so that the petitioner therein could appear before the NHIA.
6. The learned CGC submits that the BRO is facing shortage of manpower and therefore, the Competent Authority has returned the request of the petitioner. He submits that there has been instructions issued by the respondent authorities to the effect that Officers and Staff of the BRO should desist from attending interview, without taking prior approval of the Competent Authority and in this regard, he has relied upon the letter dated 11.02.2021, issued by the Deputy Secretary (BR-II/GE-I), Ministry of Defence, Border Road Development Board. However, Mr. K. Gogoi fairly submits that the matter is a covered matter in view of the Order dated 02.09.2021 passed by the Division Bench of this Court in W.A. No. 188/2021, on facts which are similar to the facts of the present case.
7. Mr. C. Baruah, the learned counsel appearing for the NHAI submits that though the time given to the petitioner to submit his documents and NOC for joining the post Page No.# 5/7 of General Manager (Technical) NHAI was not extended beyond 31.07.2021, the post has been kept vacant in terms of the interim order passed by this Court on 29.07.2021. Mr. C. Baruah also submits that the present case is a covered matter in terms of the Order dated 02.09.2021, passed in W.A. No. 188/2021.
8. I have heard the learned counsels for the parties.
9. It is seen that the present matter is similar to the fact situation as reflected in W.A. No. 188/2021, arising out of WP(C) No. 2804/2020. The relevant paragraphs of the Order dated 02.09.2021 passed in W.A. No. 188/2021 is reproduced below:-
"The settled position in such matter is that the private respondent/writ petitioner was legally bound to take permission/NOC from his employer in case he was to sit in any interview for appointment on deputation in any other department/organization. In the present case, there was no specific denial by the employer when the private respondent/writ petitioner sought for such permission. Although the employer did not grant permission, at the same time, there is no specific denial for such permission/NOC. The order dated 19.02.2020 denying NOC to the petitioner was only communicated to the private respondent/writ petitioner on 09.06.2020, i.e. after he appeared in the examination and was selected. There is nothing on record to show that the order dated 09.02.2020 was communicated to the private respondent/writ petitioner before 09.06.2020 or before he appeared in the examination. In fact, the finding of the learned Single Judge is that the order dated 09.02.2020 was never communicated to the private respondent/writ petitioner before 09.06.2020. When permission/NOC was sought and when there was no specific denial by the employer, it was not unusual for the petitioner to assume that approval was deemed to have been given. This Court is of the opinion that, under this situation, when there is nothing to show that there was specific denial of the NOC by the employer, but at the same time, when the same employer had approved the cases of fifteen other Engineers of the same department for deputation in the National Highways Authorities of India, some of whom had not even cleared the examination, it only shows bias against the private respondent/writ petitioner. When the Border Roads Organization itself had recommended the cases of fifteen Engineers for deputation, no reasonable cause has been shown by the employer as to why NOC was denied to the private respondent/writ petitioner.
Page No.# 6/7 At this juncture, we are conscious of the difficulties which may be faced by the Border Roads Organization as we have been told that there is shortage of officers for deputing in High Altitude Area, but, at the same time it is also true that when the private respondent/writ petitioner submitted application to his employer for forwarding his candidature for the post, his application was not rejected by his employer. It is also true that it is the Border Roads Organization which recommended its fifteen officers to be sent on deputation to the NHAI. We find that the writ appellants have failed to show any reason as to why NOC should have been denied to the private respondent/writ petitioner.
Under the peculiar facts and circumstance of the case, we are of the opinion that there is nothing for us to interfere with the findings of the learned Single Judge.
We have been informed that during pendency of the present appeal the private respondent/writ petitioner has been transferred to Rohtang in the Solang Valley, Manali, in the district of Kullu, Himachal Pradesh.
We direct the authorities in the Boarder Roads Organization to issue NOC to the private respondent/writ petitioner within a period of fifteen days from the date of receipt of a certified copy of this order so that he may appear in the interview for his deputation in NHAI.
Writ appeal is disposed of in terms of the above."
10. On considering the above Order dated 02.09.2021 passed by the Division Bench, this Court also finds that there is nothing on record to show that the Border Road Organization had denied permission to the petitioner to join the post of General Manager (Technical), NHAI and as such, it was not unexpected for the petitioner to have assumed that approval for the same had been given by the concerned authorities. As the present case is a covered matter, this Court directs the Border Road Organization to issue NOC to the writ petitioner within a period of 3 (three) weeks from the date of receipt of a certified copy of this order and also to furnish the required documents to the NHAI, so as to enable the petitioner to join the post of General Manager (Technical), in terms of the offer of appointment letter dated 03.06.2021 issued by the NHAI.
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11. The writ petition is accordingly disposed of.
JUDGE Comparing Assistant