Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. / ... vs Mohd. Firdos Rahmani And Another on 28 August, 2025
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:50936-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
SPECIAL APPEAL No. - 286 of 2025
State Of U.P. Thru. Addl. Chief Secy. / Prin. Secy. P.W.D. Lko And 2 Others
.....Appellant(s)
Versus
Mohd. Firdos Rahmani And Another
.....Respondent(s)
Counsel for Appellant(s)
:
C.S.C.
Counsel for Respondent(s)
:
Gaurav Mehrotra, Maria Fatima, Samidha
Court No. - 1
HON'BLE RAJAN ROY, J.
HON'BLE MANJIVE SHUKLA, J.
1. Supplementary affidavit filed by learned Standing Counsel on behalf of the State-appellants is taken on record.
2. On the request of learned Counsel for the respondents, Ms. Maria Fatima, and as the Counsel for the appellants did not have any objection, therefore, we have heard this appeal finally, with pleadings already having been exchanged between the parties before the writ Court.
3. The respondent herein who is an Executive Engineer in the Public Works Department (PWD) filed a writ petition bearing Writ A No. 7156 of 2025 before the learned Single Judge of this Court seeking the following relief:-
"(i.) To issue a writ, order or direction in the nature of Mandamus commanding the respondents, more particularly Respondent no. 2, to issue the requisite No Objection Certificate (NOC) for relieving the services of the petitioner from Public Works Department, Government of U.P. and to enable him to join on the post of Deputy General Manager (Technical) at National Highways Authority of India (NHAI) on deputation, before the last extended date for joining i.e. 31.07.2025."
4. The writ petition has been allowed vide impugned judgment dated 18.07.2025. The Writ Court has issued a writ of Mandamus to the Additional Chief Secretary / Principal Secretary, Public Works Department, Government of U.P. to issue a No Objection Certificate for relieving of the petitioner from the Public Works Department, Government of U.P., in order to enable him to join the National Highway Authority of India in pursuance of appointment letter dated 21.03.2025. Appropriate orders in this regard have been directed to be passed within a period of 10 days from the date a certified copy of the order is produced before the concerned authority.
5. The facts of the case in brief are that the National Highway Authority of India (NHAI) issued an advertisement on 13.12.2024 calling for applications from eligible persons for being taken on deputation in the said authority. The respondent herein applied for the same. Another person, Sudhir Kumar Bharadwaj, also applied. The case of the appellants is that prior to applying, Shri Sudhir Kumar Bharadwaj, who was already on deputation to the Bridge Corporation since 30.06.2023 sought NOC from the competent level at the State Government, which was granted. The selection was held. The respondent herein was selected whereas Sudhir Kumar Bharadwaj was not selected. As, Shri Sudhir Kumar Bharadwaj has not been selected, therefore, he continues on deputation in the Bridge Corporation, and, there is no question of granting any further approval or consent for his deputation to the NHAI.
6. As regards, the respondent herein, the appellants herein declined to consider grant of NOC on the ground that there was shortage of Executive Engineers in the Public Works Department. The case of the respondent before the Writ Court, as noticed in the impugned judgment, was that the information regarding application of the respondent for going on deputation had been provided to the Chief Engineer, PWD, Lucknow, who also issued a letter dated 09.01.2025 addressed to the concerned authority of NHAI indicating no objection regarding consideration of the respondent's candidature for selection to be taken on deputation, and as, the respondent was selected as per select list dated 20.03.2025 wherein he figured at Serial No. 9, a letter was issued by the NHAI on 21.03.2025 to the Chief Engineer, P.W.D., U.P., requesting him to relieve the respondent-petitioner within a month from the date of issuance of letter for purposes of his joining on the post of Deputy General Manager (Technical) on deputation with NHAI.
7. The grievance was that despite such selection and such letter of the Chief Engineer, PWD, the appellants' herein who were opposite parties before the Writ Court were not issuing the No Objection Certificate, on account of which the respondent in spite of being selected was not able to join, which has created an unenviable situation where the NHAI was insisting on his joining but the State Government was not issuing any No Objection Certificate.
8. Before the Writ Court, the stand of the appellant-State was that there is a shortage of Executive Engineers, and out of total sanctioned strength of 366, only 280 were available and working i.e. 86 posts were lying vacant, and if the respondent-petitioner is relieved, it would affect the working of the department. It was also the case that the letter of the Chief Engineer, PWD, dated 09.01.2025 was without sanction or approval of the State Government. Since, it was a case of deputation to another statutory authority, the competent authority in this regard was the State Government, the respondent being an employee of the State Government, and there is no way that such letter could have been issued by the Chief Engineer, PWD on his own without the approval of the competent level at the State Government.
9. As regards, case of Sudhir Kumar Bharadwaj, it was stated that the said person was already on deputation in the Bridge Corporation, therefore, if he was to be sent to any other authority, it would not affect the functioning of the PWD because, in any case, his services were not available as of now in the department.
10. The Writ Court was persuaded by the letter of the Chief Engineer, PWD, and opined that if the Chief Engineer, PWD failed in his duties to apprise the State Government with regard to such an application, petitioner cannot be held liable for same, since he was required to inform superior authorities only through an appropriate mode, which in the present case would be the Chief Engineer concerned. Accordingly, the Court found it a fit ground for interference, specially, on account of the fact that No Objection was granted to Sudhir Kumar Bharadwaj, another Executive Engineer in the department. Accordingly, it recorded a finding based on Article 14 and 16 that there was discrimination and allowed the writ petition in the terms already mentioned hereinabove.
11. It is also the case of the appellant-State that the said Sudhir Kumar Bharadwaj, in fact, had sought the approval / NOC from the State Government at the time of applying for selection and not after having been selected, as is the case of the respondent herein, although, Ms. Fatima, appearing for the respondent says that he had also applied for NOC while applying for selection and not after having been selected.
12. Be that as it may, the learned Single Judge appears to have lost sight of the issue as to what was the right, if any, of the respondent-petitioner to seek a mandamus for issuance of an order for being sent on deputation. We do not find any consideration of this aspect. In our understanding of the legal position, there is no absolute and indefeasible right in any employee of the Government to go on deputation. Even if we ignore, for the moment, the issue as to whether the NOC was sought from the competent level or not, the fact is that there is no such indefeasible right. The scope of interference in such matters is very limited. It is only in exceptional cases of proven malafide or manifest discrimination or arbitrariness, a writ as was prayed could have been issued. We have perused the decision relied upon by learned Counsel for the appellant-State reported in (1999) 4 SCC 659; Umapati Choudhary Vs. State of Bihar & Another; as also, the decision reported in (2000) 5 SCC 362; Kunal Nanda Vs. Union of India & Another; and the Division Bench judgment of the Delhi High Court rendered on 03.02.2022 in Writ C No. 1306 of 2022; Kamlesh Kumar Jha Vs. Directorate General Border Roads & Ors.; the legal position discussed therein is similar to what we have observed herein.
13. Further, once an employee of the Government applies for going on deputation, then, we cannot fathom a situation where anybody below the State Government can grant such approval or NOC, as it would lead to incongruous result, that is, without the State Government coming to know about it somebody could go on deputation, especially in a case involving change of employer, as in this case. It is also informed that the State Government has issued a show cause notice to the Chief Engineer for issuing the letter dated 09.01.2025 without the consent of the State Government recently on 22.08.2025.
14. We also take into consideration the fact that, so far as, discrimination is concerned, Sudhir Kumar Bharadwaj was already on deputation in the Bridge Corporation, therefore, in any case, his services were not available with the Public Works Department. Moreover, he has not been selected, therefore, he continues to be on deputation.
15. Now, Ms. Fatima says that if there is shortage of Executive Engineers, then others (21 in number) who are on deputation should also be brought back. This is not an issue to be considered by her client or the Courts nor is it the ground on which the writ has been allowed. These are purely administrative matters to be seen by the State Government at the competent level. Unless it was a case of malafide or proven discrimination and unfairness, there was hardly any reason for the Writ Court to have issued a Mandamus to the Additional Chief Secretary to issue an NOC to the respondent for being sent on deputation, even if, based on selection, in the facts and circumstances of the case.
16. Ms. Fatima has also contended that the facts regarding the Delhi High Court judgment were very different, however, we have not relied upon the Delhi High Court judgment on facts, we have relied upon the proposition of law discussed therein with regard to the right of an employee to go on deputation, therefore, this contention does not help the cause of the respondent.
17. The other contention raised was that the career prospects of the respondent were better in the National Highway Authority of India, as he was selected for being taken on deputation on a higher scale. We are afraid, this is not at all a factor or parameter having any relevance so far as sending of an employee on deputation is concerned, we do not know of any law where a deputation could be allowed by the Writ Court on this ground. If the respondent feels that he has better career prospects in any other organization, he is always free to take such steps as he deems fit for advancing his career prospects, but this cannot be a ground for issuing a writ of Mandamus to the State Government for issuing an NOC to the respondent for being sent on deputation.
18. Another contention was that the writ petition has been filed only after contempt notices were issued for non-compliance of the judgment impugned herein and that time was granted for filing an affidavit of compliance, therefore, the submission was that once before the Contempt Judge, time had been sought for filing an affidavit of compliance, it was not open for the State Government to file this appeal, the State, therefore, according to Ms. Fatima, appears to be playing hide and seek. The impugned judgment is of 18.07.2025 and was served on the appellant on 25.07.2025, and appeal has been filed on 25.08.2025. Seven days delay in its filing has already been condoned. The words 'affidavit of compliance' as mentioned by the Contempt Court in its order dated 22.08.2025 cannot be understood to mean that the State Government had acceded to the judgment of the Writ Court or that they had decided not to challenge it. There is no such recital in the order dated 22.08.2025 passed in Contempt Application (Civil) No. 2601 of 2025. Learned Counsel for the appellants says that simply time had been sought for filing a response but the Contempt Court in its wisdom had used the word 'affidavit of compliance'. This cannot be understood as estopping them from availing a remedy of Intra Court appeal, at least in the facts of the case, or offering an explanation in contempt proceedings as to why the judgment cannot be complied. We have already condoned the delay in filing of the appeal.- For all these reasons, this argument of Ms. Fatima also does not persuade us to take any other view of the matter. Essentially, the issue is as to what was the right which was sought to be enforced by the petitioner before the Writ Court and as we are not satisfied on this count, therefore, all other pleas fall into insignificance.
19. In view of the aforesaid, we are of the opinion that this was not a case for interference by the Writ Court in exercise of its extraordinary discretionary jurisdiction, and it has erred in doing so. Accordingly, we quash the impugned judgment and dismiss the writ petition.
20. The appeal is allowed in the aforesaid terms.
(Manjive Shukla,J.) (Rajan Roy,J.) August 28, 2025 Lokesh Kumar