Document Fragment View

Matching Fragments

16. The issue of refusing NOC on the ground of ban in outside employment had come up for consideration before this court in the case of Sri Swapan Kumar Mallik (supra). In that case, the applicant, who was working as an Executive Engineer (Civil) under the BRO, went on deputation as Deputy General Manager (Technical ) under the NHAI with the consent of the BRO. While serving in the said post, he became eligible for applying for absorption in the post of Deputy General Manager (Technical ) on permanent basis and accordingly applied for the said post for better advancement of his career. The applicant was offered appointment on absorption basis vide appointment order dated 30-07-2013, which was, however, subject to the condition that he would produce a NOC from his parent department i.e. the BRO. But the request for NOC was rejected by the BRO authorities on the ground that there was a ban in force preventing the department from forwarding the application for outside employment/absorption/ inter-departmental transfer due to deficiency of staff. While rejecting the stand of the department (BRO) the Division Bench of this Court had made the following observations :-

"18. The contentions raised by Mr. S.C. Keyal, the learned ASG appearing for the BRO authorities, in defending the impugned actions of the BRO authorities are that the BRO authorities in refusing to issue the NOC took into account are three factors, namely, (i) there was ban on outside employment/absorption/transfer in the organization; (ii) the certificate dated 18-5-1999 issued by him prior to his leaving on deputation acknowledging that the maximum period of his deputation was four years and that he should revert to his parent department on the expiry of four years/approved deputation period (iii) the undertaking signed by him on the same day that overstayal on deputation beyond the sanction period would be treated as dies non and that he understood the consequences of it. In so far as the excuse about ban on outside employment is concerned, Clause 14(a) of the Recruitment Rules (?) at Annexure/R-1 of the rejoinder affidavit of the appellant provides that in case of deficiency in the respective cadre, ban on outside employment would be imposed, if the overall cadre deficiency including that of service Officers is greater than 15 percent. From the chart given by the appellant in para 4(h) of the same rejoinder affidavit, it would appear that the cadre deficiency for Executive Engineer (Civil) in the BRO is 1.03% and 2.57% as on 1-1-2014 and 1- 1-2015 respectively. It is also stated by the appellant in the same para that the sanctioned/authorized strength of Executive Engineer (Civil) in the BRO is 194 and as per the Master Seniority List as on 1-1-

2014, out of 194 sanctioned posts, 192 posts are filled up by Executive Engineer (Civil) personnel. The affidavit further goes on to state that as per the MSL dated 1-1-2015, 189 post are filled up by Executive Engineer (Civil) personnel, the reduction of the posts by three is not due to some Executive Engineer (Civil) leaving the BRO but due to normal promotions granted to them to the posts of Superintending Engineer (Civil) and, as such, there is no critical deficiency as claimed by the BRO authorities. No rebuttal to these categorical statements of the appellant is made by the BRO authorities. This goes to show that there is no cadre deficiency for refusing the NOC to the appellant. In case there happens to be any deficiency of a particular rank/class of employees, it is for the BRO authorities to take appropriate action to fill the vacancies, but that can hardly be a ground to refuse permission/NOC, particularly, when the appellant has also fulfilled the conditions for technical resignation. In the absence of effective rebuttal, we hold that the refusal of the BRO authorities to grant NOC to the appellant on the ground of ban on outside employment/absorption ill-conceived, arbitrary, smacks of malice in law and contravenes his fundamental rights guaranteed under Articles 14 and 19 of the Constitution."

20. Record reveals that most of the GREF employees seeking out- side employment is doing so for the purpose of seeking better career options. The petitioners here-in are also desirous of seeking employment outside the BRO in pursuit of better career options, if not in terms of pay structure, atleast in terms of better promotional avenues. All employees under BRO stand in equal footing in so far as their right to seek better employment opportunity outside the department is concerned. There is no intelligible differentia visible on record so as to extend a differential treatment to the Subordinate Staff by recognizing a better right of the Officers in that regard. As such, the respondent could not have framed a separate policy insisting on 20 years of service before permitting them to apply for out-side employment only in case of a particular category of employees. It appears that the BRO has also not obtained the approval of the concerned Ministry before imposing such a ban of 20 years on outside employment upon a particular category of employees. Under the circumstances, this court is constrained to hold that the policy decision of the BRO imposing a restriction only on the subordinate staff denying them NOC for outside employment prior to completion of 20 years of service, on the face of it, is discriminatory and hence, in clear violation of the fundamental rights of the petitioners guaranteed under Articles 14 , 16 (1) and 19 of the Constitution.