Uttarakhand High Court
Sudhanshu Jauhari And Others ... vs State Of Uttarakhand And Others on 2 September, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:7799
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (S/S) No. 1481 of 2024
Sudhanshu Jauhari and others --Petitioners
Versus
State of Uttarakhand and others -Respondents
With
Writ Petition (S/S) No. 1483 of 2024
Himanshu Joshi and others --Petitioners
Versus
State of Uttarakhand and others -Respondents
With
Writ Petition (S/S) No. 1484 of 2024
Arvind Kumar and others --Petitioners
Versus
State of Uttarakhand and others -Respondents
With
Writ Petition (S/S) No. 1623 of 2024
Manoj Jakhmola and others --Petitioners
Versus
State of Uttarakhand and others -Respondents
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Advocates: Mr. Dushyant Mainali and Mr. Nikhil Bhatt, Advocates for the
petitioners
Mr. Narayan Dutt, Standing Counsel for the State
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JUDGMENT
1. Petitioners participated in the selection for appointment as Assistant Teacher, Government Primary School, held in the year 2021 and, upon selection, they were appointed in different Districts by means of orders issued in the month of January, 2022.
2. The post of Assistant Teacher, Government Primary School is a District Cadre Post, and anyone appointed on the post is not liable to be transferred outside the district. Appointing authority for the said post is District Education 1 2025:UHC:7799 Officer. Since petitioners were appointed in hill districts or other remote places and they were desirous of serving in accessible places or in their home districts, therefore they wish to again participate in the selection for appointment to the post of Assistant Teacher, Government Primary School. However, they will have to submit 'No Objection Certificate' from the Competent Authority for reapplying to the same post.
3. Director (Elementary Education), Uttarakhand issued a circular on 27.07.2024, whereby instructions were issued to the District Education Officers of all 13 Districts not to issue 'No Objection Certificate' to persons who are already serving as Assistant Teacher, Government Primary School.
4. Petitioners have challenged said circular on the ground that it curtails their freedom of choice. Learned State Counsel, however relies upon a judgment rendered by Division Bench of this Court in WPSB No. 308 of 2024, for contending that employee does not have inherent right to get NOC and employer has every right to say no to a request for NOC made by the employee. Para 8, 9 and 10 of the said judgment is reproduced below:
"8. As the name of the Certificate itself suggests, it is issued by the employer to facilitate the act of his employee seeking employment elsewhere. Thus, if the employer has some reservation against his employee seeking employment elsewhere, then the employer can refuse to grant NOC. This is a right, which inheres in every employer. However, it does not mean that after accepting employment, an employee loses all his rights and he is always free to resign and then apply for appointment in some other organization. Issuance of NOC indicates that the employer has consented to the act of his employee seeking employment elsewhere. There is no law, which regulates grant of NOC. Section 13 of the Indian Contract Act, 1872 defines 'consent' and Section 14 defines "Free consent", which are reproduced below:-2
2025:UHC:7799 "13. 'Consent' defined.--
Two or more persons are said to consent when they agree upon the same thing in the same sense.
14. 'Free consent' defined.--Consent is said to be free when it is not caused by--
(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16 or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake."
9. The contention made by learned counsel for the petitioner that the condition put by the impugned Government Order amounts to an artificial classification between Government Medical Colleges, within the State, vis-a-vis other Medical Colleges, cannot be accepted. Government Medical Colleges are established to provide quality medical education on subsidized tuition fee and also to provide medical and health services to the masses. Huge amount of public money is spent to establish and run Government Medical Colleges, which function as referral hospitals for providing tertiary health services to the poor, who cannot afford to go to private hospitals for treatment. Various outreach programs are conducted by Government Medical Colleges for the benefit of masses, which is seldom done by private Medical Colleges. There is no profit motive for running a Government Medical College and they are maintained by the grants provided by the State Government, unlike private Medical Colleges, which have to strike a balance between income and expenditure. Thus, Government Medical Colleges fall in a different class and equality clause contained in Article 14 of the Constitution cannot be pressed into service for questioning the classification made between Government Medical Colleges vis-a-vis other colleges. Article 14 ordains that equals cannot be treated unequally. As discussed earlier, Government Medical Colleges belong to a different class, therefore, the State Government can very well make special provision for such colleges.
10. From the above discussion, it is apparent that NOC for seeking employment under some other employer requires consent of the employer. When an employee requests for NOC and the employer accedes to the request of the employee, then NOC is issued. Thus, both parties must agree, before NOC can be issued. If the employer does not agree to the request made by employees, NOC cannot be issued. Thus, the State Government has exercised its right to say no, which is available to every employer. The impugned decision cannot be said to be arbitrary, so as to 3 2025:UHC:7799 warrant judicial interference."
5. Learned counsel for the petitioners submits that since appointing authority for the post of Assistant Teacher, Government Primary School is District Education Officer, therefore the decision whether to issue NOC, or not, has to be taken by the appointing authority and the Director (School Education) has no authority to issue such instructions to the competent authority. Thus it is contended that interference made by Director with the power of the District Education Officer, is arbitrary and illegal.
6. This Court finds substance in the submission made by learned counsel for the petitioners.
7. Admittedly, Director is not the appointing authority for the post of Assistant Teacher, Government Primary Schools, as per the applicable rules and they are appointed by District Education Officer. Thus the decision whether to issue 'No Objection Certificate' to a Assistant Teacher or not can be taken only by the appointing authority on case to case basis.
8. Since the field is covered by recruitment rules which are statutory, therefore decision in the matter has to be taken by the authority, who is competent to make appointment as per the recruitment rules. Thus, direction issued by Director (School Education), is dehors the statutory Rules, which cannot be sustained in the eyes of law.
9. In such view of the matter, writ petition is allowed, the circular dated 27.07.2024 issued by Director (School Education), to the extent it interferes with the authority of District Education Officer to issue 'No Objection 4 2025:UHC:7799 Certificate', is set aside. The request made by Primary School teachers for NOC shall be considered by the District Education Officer concerned on case-to-case basis, as per law.
10. Pending application(s), if any, stand disposed of.
_______________________________ MANOJ KUMAR TIWARI, J.
Dt: 02.09.2025 Mahinder Digitally signed by MAHINDER SINGH MAHINDER SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH Date: 2025.09.08 19:35:41 +05'30' 5