The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.40104 of 2023 Ashish Kumar Dash …. Petitioner Mr. G.R.Sethi, Advocate -versus- Secretary, Odisha Staff Selection Commission, Bhubaneswar & others …. Opposite Parties Mrs. S.Pattnaik, AGA CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Order No. 04. 1. This matter is taken up through hybrid arrangement ORDER 17.01.2024 (virtual/physical) mode. 2. The petitioner in the instant writ challenges the order passed by the learned District Judge, Nabrangpur on 04.12.2023 refusing to issue No Objection Certificate (NOC) in his favour by invoking the extra ordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. 3. Briefly stated, it is admittedly the second journey of the petitioner to this Court for the selfsame relief of grant of NOC in his favour and his earlier prayer in this regard was considered by
Legal Reasoning
this Court in W.P.(C) No. 38022 of 2023 by directing the Opposite Party No.2-District Judge, Nabarangpur to reconsider the matter in the light of circular of this Court dated 16.02.2022, but Opposite Party No.2 by the impugned order dated 4th December, 2023 has rejected the representation of the petitioner by refusing to issue NOC in his favour after reconsidering the same. According to the petitioner, he was appointed as a Stenographer Grade-III in the Page 1 of 7 // 2 // Judgeship of Nabarangpur on 22.02.2021 and thereafter, he was promoted to the post of Stenographer Grade-II, but in the meantime, Orissa Staff Selection Commission issued an advertisement for Combined Graduate Level Examination, 2022 and accordingly, the petitioner has applied to Opposite Party No.2 for issuance of NOC to appear in the examination and the petitioner, thereafter, applied for Combined Graduate Level Examination, 2022 by annexing an undertaking to produce NOC at the relevant time and accordingly, Opposite Party No.1 published a list of candidates for document verification. Thus, the petitioner again filed an application to Opposite Party No.2 to issue NOC, but Opposite Party No.2 rejected the same refusing to issue NOC to him on 16.11.2023 without assigning any reason which was challenged by the petitioner in W.P.(C) No. 38022 of 2023 wherein this Court by extracting the circular of this Court vide letter No. 2552(30) dated 16.02.2022 extensively in the matter relating to grant of NOC to an employee, which direct to allow issuance of NOC ordinarily in suitable cases, has passed order to reconsider the case of the petitioner, but in consideration of the representation of the petitioner in the light of the order passed by this Court in W.P.(C) No. 38022 of 2023, the Opposite Party No.2 again rejected by refusing to issue NOC to the petitioner interalia citing reasons that the post to which the petitioner applies for carries the same scale of pay as his current position of Grade-II Stenographer, shortage of staff in the cadre of Stenographers which is detrimental to the efficiency of the working of the department and significant challenges in recruiting Stenographers. Hence, this writ petition by the petitioner. Page 2 of 7 // 3 // 4.
Decision
In response to the notice of the writ petition, Opposite Party Nos. 2 and 3 jointly filed their counter affidavit without disputing the facts involved in this case, but reiterating the substance of rejection of issuance of NOC to the petitioner. Pursuant to the counter affidavit of Opposite Party Nos. 2 & 3, the petitioner has filed his rejoinder affidavit indicating therein about his selection to the post of Inspector of Supplies with Level-9 scale of pay. 5. In the course of hearing of the writ petition, Mr.G.R.Sethi, learned counsel for the petitioner by drawing attention of the Court to the copy of Office order High Court of Orissa, Cuttack dated 26.11.2022 containing a list of employees issued with NOC as well as copy of NOC issued to Mr.D.Aurobindo Dora, ASO High Court of Orissa and copy of NOC issued to Mr. Sanjit Kumar Naik, Jr.Clerk in the Judgeship of Koraput, submits that since the employees situated similarly have been granted with NOC by the corresponding authority, the deprivation of the petitioner for such NOC would be a discrimination without any reason and the circular of the High Court of Orissa is very clear in this regard and, therefore, the petitioner should have been issued with NOC. It is also submitted that the circular issued by this Court dated 16.02.2022 clearly states that whenever an employee of a Judgeship seeks permission in writing to apply for any higher post in any Government institution/PSUs or even similar cadre of post in any higher institution like the High Court/State Secretariat, the same in suitable cases shall ordinarily be allowed, provided the employee fulfills the eligibility criteria of the post for which he/she is willing to apply and this circular appears to be mandatory in nature by the very use of sentence “shall ordinarily be allowed”, but Opposite Party No.2 without assigning any valid reason has refused to issue Page 3 of 7 // 4 // NOC in favour of the petitioner because the reasoning cited by Opposite Party No.2 at best shows his difficulty in recruiting Stenographers or shortage of Stenographers in the cadre, but the post for which the petitioner applies carries the same scale of pay and thus, the refusal of NOC to the petitioner appears to be not on sound logic and cannot outweigh the direction of circular dated 16.02.2022 issued by this Court. In summing up his argument, Mr.Sethi prays to direct Opposite Party No.2 to issue NOC in favour of the petitioner. 6. On the other hand, Mrs.S.Patnaik, learned Additional Government Advocate submits that since the post for to which the petitioner has applied for carries the same scale of pay and thereby the circular of the High Court may not be applicable. Mrs. Patnaik also submits that Opposite Party No.2 has not committed any illegality or irregularity in refusing to issue NOC in favour of the petitioner and thereby the petitioner having applied and selected to the post without taking due permission of authority may not be granted with NOC subsequently. 7. After having considered the rival submissions upon perusal of record, it appears that the sole question falls for consideration before this Court is whether the impugned order dated 04.12.2023 passed by Opposite Party No.2 refusing to issue NOC in favour of the petitioner is justified in the circumstance. It is obvious that this Court by an letter dated 16.02.2022 has issued instruction regarding issuance of NOC to the employees of the Sub-ordinate Judiciary of the State and the instruction laid therein clearly stipulates that whenever any employee of a judgeship seeks permission in writing to apply for any higher post in any Government institution/PSUs or any similar cadre post in any higher institution like the High Court, Page 4 of 7 // 5 // the State Secretariat, the same in suitable cases “shall ordinarily be allowed”. The aim and objective of issuance of such letter by this Court is to provide better ambience and facility to its employee as a model employer. A person entering into a service must not have only desire and hope to achieve glory, but also has right to prosper in future and no person can be deprived of a better opportunity in service merely because there is difficulty in recruiting eligible and efficient person to the post nor it would be prudent to accept the reasoning of shortage of staff to deprive a person from getting his legitimate due or for better avenue and opportunities. In this case, the impugned order passed by Opposite Party No.2 itself discloses that the post to which the petitioner has applied for carries the same scale of pay Level-9 as his current position i.e. Grade-II Stenographer and, therefore, ordinarily NOC shall be issued in favour of the petitioner in view of the circular dated 16.02.2022 of this Court. Further, the recruitment rules applicable to different posts of Sub-ordinate Judiciary never put any restriction on the employee to leave job, especially when the employee desires to opt for another post in different department nor any bond is taken from any of the employee debarring him for a certain period to relinquish his job. 8. The right to choose a job is the right of the citizen and it can be included within broad sweep of Article-21 of the Constitution of India which also provides for right to live with dignity. Further, Article-16 provides for equality of opportunity in matters of public employment and Article 16(1) mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Hence, no citizen can be deprived of an opportunity in the matters of public employment on Page 5 of 7 // 6 // the ground of lack of shortage of staff or difficulty in recruiting the staff or depleting the staff strength. 9. Indisputedly, it appears from the document produced by the learned counsel for the petitioner indicates that some similarly situated employee have been accorded permission/provided with NOC to apply for the same exam i.e. Combined Graduate Level Examination, 2022 and therefore, depriving the petitioner in such situation would be a unreasonable discrimination against him. It is never in dispute that every citizen has got right to apply to the post for which he/she is eligible pursuant to the advertisement issued by the authority inasmuch as every citizen of the country has got right to equal opportunity and depriving him from his legitimate entitlement would not only be counterproductive, but also not in the interest of his development. The reasoning ascribed by Opposite Party No.2 while refusing to issue NOC to the petitioner appears to be not in conformity with constitutional mandate as provided in Articles.14 and 16 of the Constitution of India and the same appears to be arbitrary only. Additionally, the petitioner by way of Rejoinder has also informed the Court about his selection to the post of Inspector of Supplies and he, thereby, at liberty to choose the post which is better for him, but depriving him to choose the post of his choice would be against mandate of law and conscience. Furthermore, this Court by its earlier order in W.P.(C) No.38022 of 2023 has remanded the matter back to Opposite Party No.2 to reconsider the case of the petitioner in the light of circular of this Court, but it appears that Opposite Party No.2 has passed order in contravention to the spirit of that letter and, thereby, the refusal of NOC to the petitioner appears to be contrary to law and the letter dated 16.02.2022 issued by this Court and thereby, the refusal of Page 6 of 7 // 7 // issuance of NOC to the petitioner is unsustainable in view of the above. 10. In the result, the writ petition stands allowed, but no order as to cost. Consequently, while quashing the order passed by Opposite Party No.2, this Court directs for issuance of NOC to the petitioner so as to enable him to take further steps for his employment. (D. Dash) Judge (G. Satapathy) Judge Kishore/Subhasmita Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 19-Jan-2024 14:43:52 Page 7 of 7