Gauhati High Court
Page No.# 1/6 vs Go-3006M Ram Asra Khural And 2 Ors on 2 September, 2021
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
Page No.# 1/6
GAHC010122432021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/188/2021
THE UNION OF INDIA AND 2 ORS.
REP. BY JOINT SECRETARY (BORDER ROADS) TO THE GOVT. OF INDIA,
MINISTRY OF DEFENSE, (EARLIER DESIGNATED AS SECRETARY (BRDB),
ROOM NO. 418, (B) WING, 4TH FLOOR, SENA BHAWAN, NEW DELHI-
110010.
2: THE 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
LANKESHWAR
GUWAHATI- 781014
ASSA
VERSUS
GO-3006M RAM ASRA KHURAL AND 2 ORS.
S/O- SRI CHURA RAM, EXECUTIVE ENGINEER (C), HQ ADGBR (EAST),
JALUKBARI, LANKESWAR, GUWAHATI- 780014, ASSAM (NEW UNIT
ADDRESS HQ CE (P) ROHTANG TUNNEL, PIN- 931720 C/O- 56 APO).
2:NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF ROADS
TRANSPORT AND HIGHWAYS
G-5 AND 6
SECTOR 10
DWARKA
Page No.# 2/6
NEW DELHI- 110075.
3:THE CHIEF GENERAL MANAGER (TECH/HR)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF ROADS
TRANSPORT AND HIGHWAYS
G-5 AND 6
SECTOR 10
DWARKA
NEW DELHI- 110075
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : SC, NHAI
BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 02.09.2021 The matter has been taken up today through video conferencing. Heard Mr. S. C. Keyal, learned counsel for the writ appellants. Also heard Mr. D. Baruah, learned counsel for respondent no. 1 (private respondent) and Mr. C. Baruah, learned Standing Counsel, National Highways Authority of India, appearing for respondent nos. 2 and 3 (proforma respondents).
The present writ appeal has been filed by the Union of India challenging the order dated 19.07.2021, passed by the learned Single Judge in WP(C) 2804/2020, whereby the writ petition filed by the writ petitioner (i.e. private respondent before this court) was allowed and the authorities in the Border Roads Organization who were respondents therein were directed to grant No Objection Certificate (NOC) to the writ petitioner.
Page No.# 3/6 The brief facts of the case are that the private respondent is an Executive Engineer in Border Roads Organization (i.e. the appellants before this court). In the year 2020 an advertisement was issued by the National Highways Authorities of India for recruitment to the posts of General Manager (Technical) on deputation and the private respondent/writ petitioner applied for the post of General Manager (Technical). For this, he submitted an application on 06.02.2020 to his employer, i.e. Border Roads Organization, for forwarding his application to the National Highways Authorities of India (NHAI). The application of the private respondent/writ petitioner was forwarded to the NHAI by his employer. Thereafter, the private respondent/writ petitioner along with other candidates in the Border Roads Organization appeared in the examination and was selected for the post. However, before joining the post, the private respondent/writ petitioner was required to appear in an interview and also submit NOC from his employer. Accordingly, the private respondent/writ petitioner submitted an application on 10.06.2020 to his employer for granting him NOC. Thus, NOC was not given to the private respondent/writ petitioner and it was communicated to the private respondent/writ petitioner that the employer vide letter dated 19.02.2020 had refused permission for appearing in the written examination of NHAI as there was shortage of officers eligible for posting in High Altitude Area. Aggrieved by the denial of NOC, the petitioner approached this Court by filing the writ petition which was allowed by the learned Single Judge by the order dated 19.07.2021, as referred to above.
Learned counsel for the private respondent/ writ petitioner has specifically drawn attention of this Court to the fact that when Page No.# 4/6 permission/NOC was denied to the private respondent/writ petitioner, which was only communicated to the petitioner after he had appeared in the examination and was selected although the same employer had granted NOC to fifteen other Engineers in the same department although ten out of the fifteen candidates were such who had not even cleared the examination.
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 Page No.# 5/6 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.
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 Page No.# 6/6 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.
JUDGE CHIEF JUSTICE Comparing Assistant