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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Yogesh Kumar Vashisht – Petitioner
Versus
State of Haryana and Others – Respondents
CWP No. 23838 of 2019
Decided On : 23-02-2021
NO OBJECTION CERTIFICATE - EMPLOYMENT RESTRICTION - Indian Contract Act, 1872, Section 23 - The court upheld the validity of a clause in an appointment letter restricting a government servant from applying for another post for the first 5 years of service, finding it not opposed to public policy or Article 14 of the Constitution. The court also considered Rule 21 of the Haryana Medical Education Service Rules, 1988, which enables the employer to impose special terms and conditions in the order of appointment.
Fact of the Case:
The petitioner, an Assistant Professor, sought a writ to quash a condition in the appointment letter restricting the issuance of a No Objection Certificate (NOC) for applying elsewhere until completion of 5 years of service. The petitioner had applied for another post, and the NOC was refused, leading to the writ petition.
Finding of the Court:
The court found the employment restriction clause valid and not opposed to public policy or Article 14 of the Constitution. It held that the employer had the right to impose such conditions under Rule 21 of the Haryana Medical Education Service Rules, 1988.
Issues: The main issue was whether the employment restriction clause in the appointment letter was valid and in accordance with the law.
Ratio Decidendi: The court relied on the Indian Contract Act, 1872, Section 23, and Rule 21 of the Haryana Medical Education Service Rules, 1988, to uphold the validity of the employment restriction clause, finding it not opposed to public policy or Article 14 of the Constitution.
Final Decision: The petition was dismissed, and the employment restriction clause was upheld as valid.
JUDGMENT :
ANIL KSHETARPAL, J.
1. Through this writ petition filed under Article 226/227 of the Constitution of India, the petitioner calls upon the Court to grant the following substantive reliefs:-
“(i) A writ for issuance of writ, order or direction in the nature of Certiorari to quash the impugned condition no. 9 of the appointment letter dated 25.10.2017 (Annexure P-1) and impugned letter dated 7.8.2019 (Annexure P-5) issued by the respondent no. 2 vide which application dated 14.7.2019 (P-3) for the given the No Objection Certificate (NOC) has been rejected, in so far as it pertains to the restrictions on the Teaching Faculty- Group A because the same is without application of mind, irrational, arbitrary, fails to meet it actual objective and unconstitutional for the reasons stipulated in the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to give “No Objection Certificate” to the petitioner for appearing in the selection process for the post of Assistant Professor, Department of Forensic Medicine applied under the Advertisement No. UHSR/Rectt/5/2019 dated 13.07.2019 (P-2) published by respondent no. 3 as the petitioner has been called on 3.9.2019 for scrutiny of documents and thereafter on 4.9.2019 for interview.”
2. In the considered view of this Bench, the following question arises for its adjudication:-
“Whether the State Government/employer can restrict the right of a Government servant to apply for another post and if so, to what extent?”
3. The petitioner was appointed as Assistant Professor in the Department of Forensic Medicine in Bhagat Phool Singh Govt. Medical College for Women, Khanpur Kalan, Sonepat vide appointment letter dated 25.10.2017. Clauses 9 and 10 thereof read as under:-
“(9) You will not be allowed No Objection Certificate to apply elsewhere till completion of 5 years of service in this College.
(10) It your want to resign from this post at any stage, you shall be required to submit three months advance notice or deposit three months salary in lieu thereof or pro-rata amount of the period by which this notice falls short of similarly, if the State Government wants to dispense with your service, you will be given three months notice for the same or an amount equal to salary for three months by-demand draft in advance. However, your resignation will be accepted only after arrangement of a suitable substitute in your place so that studies of the students and patient care doesn't suffer. You will no leave your duty till your resignation is duly accepted by the competent authority.”
4. The petitioner after having joined the respondent-College, applied for the post of Teacher (Assistant Professor) Medical (Forensic Medicine), pursuant to a recruitment notice issued in the month of July by Pandit B.D. Sharma University of Health Sciences, Rohtak. The petitioner requested for no objection certificate, which was refused by the respondents vide communication dated 07.08.2019. The petitioner filed the writ petition. On 02.09.2019, the respondent-University was directed to provisionally interview the petitioner subject to the final outcome of the writ petition. The petitioner has appeared and scored sufficient marks to be selected.
5. On notice of motion, the respondents have taken a stand that the clause in the appointment letter is in accordance with law. It has been pleaded that such bar is applicable only if a member of the faculty applies for the same or equivalent post and such prohibition does not apply to the member of the faculty who applies for a higher post. It is pleaded that such bar is applicable only during the 1st 5 years of service.
6. Heard learned counsel for the parties and perused the paper book. Learned senior counsel representing the petitioner submits that such clause is un-conscionable and therefore, violative of Article 14 of the Constitution of India. He submits that the Hon’ble Supreme Court in Central Inland Water Transport Corpor
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