Gauhati High Court
Raj Narayan Tiwari vs The Union Of India & Ors on 16 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) No.3492 of 2010
Raj Narayan Tiwari ... ... ... Writ Petitioner
-Versus-
The Union of India and others. ... ... Respondents
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the petitioner : Dr. B. Ahmed, Advocate.
For the respondents : Mr. A. C. Kalita, Central Govt. Counsel.
Date of hearing : 16.02.2017.
Date of Judgment : 16.02.2017.
JUDGMENT AND ORDER (Oral)
1. Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. A. C. Kalita, learned Central Government Counsel, appearing on behalf of the respondents.
2. The writ petitioner herein was earlier in the service of Border Roads Organisation (BRO) under the GREF and was posted as an Overseer in the year 1996. Thereafter, the petitioner had acquired the degree of Graduate Civil Engineer and hence, he was promoted to WP(C) 3492/2010 Page 1 of 6 the post of Superintendent, BR-II on 25.01.2004. On 03.01.2001 the petitioner had made an application before the Officer Commanding, HQ 55 RCC(GREF) C/O 56 APO, i.e. respondent No.5, seeking no objection of the department permitting him to apply for the post of Junior Engineer (Civil) in the Irrigation Department under the Government of Uttar Pradesh in terms of the Advertisement No.A-3/E- 1/2000 (Annexure-1 to the writ petition) published by the Uttar Pradesh Public Service Commission. On the basis of the application dated 03.01.2001, the respondent No.5 had issued an "NOC" in favour of the petitioner on 06.01.2001 and the petitioner had participated in the selection process conducted by the UPPSC for the post of Junior Engineer (Civil). The petitioner had eventually come out successful in the selection process and the Chief Engineer, Irrigation Department, had accordingly issued appointment order dated 26.06.2006 in favour of the writ petitioner. Immediately on receipt of the appointment order, the petitioner had submitted a letter dated 03.07.2006 intimating the respondent No.5 about his appointment as Junior Engineer (Civil) in the Uttar Pradesh Irrigation Department with a request to release him from duty on or before 10.07.2006 after completing the official formalities. However, the request for release made by the petitioner by the letter dated 03.07.2006 was rejected by the communication dated 18.07.2006 issued by the respondent No.5. Hence this writ petition.
WP(C) 3492/2010 Page 2 of 6
3. Dr. B. Ahmed, learned counsel for the petitioner, submits that notwithstanding the rejection order dated 18.07.2006 the petitioner went ahead and joined the post of Junior Engineer (Civil) in the Irrigation Department, Government of Uttar Pradesh. However, in the absence of release order issued by his previous employer i.e. the respondent No.2 the petitioner will not be entitled to the benefit of the past service rendered by him under the respondents since his initial joining in the year 1996.
4. Referring to the judgment and order dated 05.12.2006 passed by this Court in WP(C) No.2453/2006 [Sanjay Kumar vs. Union of India and others] and the connected writ petition, Dr. Ahmed submits that the right of an employee to avail the scope of better employment outside the BRO has crystalised after the law laid down by this Court in the aforementioned judgment. Dr. Ahmed submits that on the basis of the judgment and order dated 05.12.2006 the respondents have already permitted a large number of departmental employees to seek employment outside the organization but the petitioner has been singled out with a mala fide intention of causing undue harassment and injury to his interest. Under the circumstances, the learned counsel for the petitioner has prayed that a direction to be issued upon the respondents to issue order of release in favour of the petitioner.
5. Resisting the arguments made on behalf of the petitioner, Mr. A. C. Kalita, learned counsel for the respondents, has drawn the WP(C) 3492/2010 Page 3 of 6 attention of this Court to the relevant rules laying down the "format of resignation" of an employee to contend that the letter seeking release from the department not being in proper format and the same not being a clear and unconditional letter of resignation, the respondents had rightly rejected the said prayer made by the petitioner.
6. On perusal of the materials available on record, I find that earlier a ban was imposed vide communication dated 17.03.2006 restricting departmental employees from seeking employment outside the organization. In view of such ban, some of the similarly situated employees were denied 'NOC' for joining their new jobs outside the organization which had led to the filing of writ petitions before this Court.
7. In the case of Sanjay Kumar (supra) also, the petitioner had obtained 'NOC' from the respondent authorities for the purpose of applying for better employment outside the organization and accordingly took part in the selection process based on such NOC issued by the authorities. However, after his selection, the respondents had refused to release him from duty as a result of which he was compelled to approach this Court by filing the aforementioned writ petition. While allowing the writ petition, this Court had strongly deprecated the stand of the respondents in refusing to release the petitioner from duty so as to enable him to join in the new places of employment holding that approving such a stand of the respondents WP(C) 3492/2010 Page 4 of 6 would amount to denying the bona fide expectation generated by the favourable disposition to the petitioner's application permitting him to take part in the selection process.
8. Having regard to the facts and circumstances of the present case, I am of the considered opinion that the law laid down by this Court in the case of Sanjay Kumar (supra) will be squarely applicable in the facts of the present case as well. In the present case also the application was made by the petitioner way back in the year 2001, i.e. long before the ban was imposed. It is only after obtaining the NOC from the respondent No.5 that the petitioner had participated in the selection process wherein he had emerged successful. Having participated in the selection process with the consent of the respondents, the authorities could not have denied the fruits of such selection to the petitioner by taking a completely contrary stand in the matter.
9. Although Mr. Kalita has made an attempt to justify the stand of the respondents by placing reliance upon the provisions of the rules as regards the "format of resignation", I am of the view that without using the expression "resignation" sufficient indication was given in the letter dated 03.07.2006 to the effect that the applicant was actually resigning from his job under the respondents so as to join in the post of Junior Engineer (Civil) in the Irrigation Department, Government of Uttar Pradesh. A bare reading of the letter dated 03.07.2006 leaves no WP(C) 3492/2010 Page 5 of 6 room of doubt that the resignation of the petitioner was unequivocal and unconditional one. Therefore, the submission made by Mr. Kalita cannot be accepted. The letter dated 03.07.2006 was a resignation letter submitted by the petitioner for all intent and purpose and ought to have been treated as such by the respondents.
10. For the reasons stated herein above and considering the fact that the petitioner is already serving in the Irrigation Department, Government of Uttar Pradesh, since the year 2006, this Court is of the view that save and except unnecessary harassment caused to the petitioner, no practical purpose will be served by denying him the release order, which he is otherwise entitled to under the law. In view of the above, this writ petition is disposed of with a direction upon the respondent Nos.3, 4 and 5 to ensure that a release order on the basis of the application dated 18.03.2006 (Annexure-10 to the writ petition) is issued to the writ petitioner within a period of 60 (sixty) days from the date of receipt of a certified copy of this order.
The writ petition stands allowed. The parties to bear their own costs.
JUDGE T U Choudhury WP(C) 3492/2010 Page 6 of 6