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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, Manoj Jain, JJ.
Abhishek Manoj Warthi – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 8830 of 2023
Decided On : 11-08-2023
NOC - Service Employment Dispute - Coast Guard Act, 1978, Rules 27 and 27A - The court held that the reason for declining the NOC is not sustainable as the petitioner was confirmed in service and not on probation. The court directed the respondents to reconsider the case in light of the Coast Guard Act, 1978 and Rules 27 and 27A, and also consider the applicability of the Office Memorandum dated 23.12.2013.
Fact of the Case:
The petitioner sought a No Objection Certificate (NOC) for an outside job, which was declined on the ground that the petitioner was on probation in the rank of Pradhan Navik. The petitioner contended that he was confirmed in service and no longer on probation.
Finding of the Court:
The court found that the reason for declining the NOC was not sustainable as the petitioner was confirmed in service and directed the respondents to reconsider the case in light of the relevant provisions.
Issues: The main issue was whether the petitioner, who was confirmed in service, could be denied an NOC on the ground of being on probation in the next rank.
Ratio Decidendi: The court held that the petitioner, being confirmed in service, should not be denied an NOC based on probation in the next rank. The court also referred to the Coast Guard Act, 1978 and Rules 27 and 27A, and directed the respondents to consider the applicability of the Office Memorandum dated 23.12.2013.
Final Decision: The court directed the respondents to reconsider the case in light of the relevant provisions and the Office Memorandum dated 23.12.2013, and communicate the decision to the petitioner within four weeks.
JUDGMENT
Sanjeev Sachdeva, J. (Oral)--Petitioner impugns letter dated 31.01.2023 whereby the application of the petitioner for grant of No Objection Certificate for taking up an outside job has been declined.
2. Petitioner joined the Indian Coast Guard on the post of Navik on 12.02.2013. On 19.04.2016, petitioner successfully completed the probation period and was confirmed in the service. On 01.11.2022, petitioner was promoted to the post of Pradhan Navik.
3. On 28.11.2022, Visvesvaraya National Institute of Technology, Nagpur advertised posts of Technical Assistants. Petitioner applied for the post through online mode and also requested the respondent for grant of a No Objection Certificate. Application of the petitioner was recommended by the Commanding Officer on 30.12.2022. However, said application was rejected by the impugned letter dated 31.01.2023. The impugned letter dated 31.01.2023 rejects the application on the ground that the same was not approved in terms of para 1(c) of Policy dated 03.08.2017.
4. Learned counsel for the petitioner submits that petitioner had joined the Indian Coast Guard, initially on probation, however, on completion of his probation he was confirmed in service on the rank of Uttam Navik and subsequently he was promoted to the rank of Pradhan Navik on 12.11.2022 and he submits that though he was put on probation in the rank of Pradhan Navik, however, petitioner is confirmed in service and no longer on probation as required by the Policy.
5. Learned counsel for the petitioner relies on the Office Memorandum dated 23.12.2013 on the subject "consolidated instructions and forwarding of applications of Government servants for outside employment - regarding".
6. Per contra, learned counsel for the respondent submits that on earning promotion to a next rank, all individuals have to be on probation for a period of two years and since petitioner was on probation in the rank of Pradhan Navik the permission has been declined.
7. The guidelines for grant of NOC for job outside Coast Guard in the form of Policy dated 03.08.2017 read as under:
(a) The post being applied for is in a State Government or the Central Government and is in a higher pay level, or
EP has officially acquired requisite academic qualification whilst in service and is desirous of applying for Group `A' Gazetted post through UPSC, or
Applicant is an EF and intending to enhance his job profile and social status, or
EP is superannuating or seeking VR after completion of 25 Years.
(b) EP has completed four years of service in the Coast Guard.
(c) EP is not under probation or pending confirmation in the service.
(d) EP has not been issued NOC in the calendar year.
(e) EP has not availed more than five NOCs during entire service.
(f) EP has no disciplinary proceedings pending against him.
(g) EP has no charge-sheet filed against him in a Court of Law for criminal prosecution.
(h) EP is not undergoing any punishment at the time of application.
8. Guidelines 1(c) stipulates the factors that have to be applied for considering an application for grant of NOC. One such condition is that the enrolled person should not be under probation or pending confirmation in the service.
9. In our view, the Guidelines 1(c) applies to the probation period prior to confirmation of enrolled person in service.
10. Expression `probation' cannot be read disjoint from the expression `pending confirmation in service'. Clause 1(c) when read as a whole indicates that the enrolled person should not be on probation or `pending confirmation in the service'.
11. In the instant case, petitioner was initially on probation, however, was subsequently confirmed in service on completion of his probation. Mere fact that petitioner has been put in probation in the next rank of Pradhan Navik would not be embargo in terms of 1(c). As petitioner is confirmed in service, if the petitioner does not successfully complete his probation in the rank of Pradhan Navik, he would revert back to
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Point of Law : Petitioner was on probation, therefore, his service can be terminated, cannot be accepted in the light of Rule 3(3) & 4 of Rules, 2013 alongwith Schedule-B for promotion.
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