HIGH COURT OF UTTARAKHAND AT NAINITAL

HON’BLE SRI JUSTI CE MANOJ KUMAR TI WARI

Writ Petition ( S/ S) No. 1481 of 2024

Sudhanshu Jauhari and others --Petitioners

Versus

State of Uttarakhand and others -Respondents

With

Writ Petition ( S/ S) No. 1483 of 2024

Himanshu Joshi and others --Petitioners

Versus

State of Uttarakhand and others -Respondents

With

Writ Petition ( S/ S) No. 1484 of 2024

Arvind Kumar and others --Petitioners

Versus

State of Uttarakhand and others -Respondents

With

Writ Petition ( S/ S) No. 1623 of 2024

Manoj Jakhmola and others --Petitioners

Versus

State of Uttarakhand and others -Respondents

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Advocates: Mr. Dushyant Mainali and Mr. Nikhil Bhatt, Advocates for the

petitioners

Mr. Narayan Dutt, Standing Counsel for the State

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JUDGMENT

1. Petitioners participated in the selection for appointment as Assistant Teacher, Government Primary School, held in the year 2021 and, upon selection, they were appointed in different Districts by means of orders

issued in the month of January, 2022.

2. The post of Assistant Teacher, Government Primary School is a District Cadre Post, and anyone appointed on the post is not liable to be transferred outside the district. Appointing authority for the said post is District Education

Officer. Since petitioners were appointed in hill districts or other remote places and they were desirous of serving in accessible places or in their home districts, therefore they wish to again participate in the selection for appointment to the post of Assistant Teacher, Government Primary School. However, they will have to submit ‘No Objection Certificate’ from the Competent Authority for reapplying to the same post.

3. Director (Elementary Education), Uttarakhand issued a circular on 27.07.2024, whereby instructions were issued to the District Education Officers of all 13 Districts not to issue ‘No Objection Certificate’ to persons who are already serving as Assistant Teacher, Government Primary School.

4. Petitioners have challenged said circular on the ground that it curtails their freedom of choice. Learned State Counsel, however relies upon a judgment rendered by Division Bench of this Court in WPSB No. 308 of 2024, for contending that employee does not have inherent right to get NOC and employer has every right to say no to a request for NOC made by the employee. Para 8, 9 and 10 of the said judgment is reproduced below:

“8. As the name of the Certificate itself suggests, it is issued by the employer to facilitate the act of his employee seeking employment elsewhere. Thus, if the employer has some reservation against his employee seeking employment elsewhere, then the employer can refuse to grant NOC. This is a right, which inheres in every employer. However, it does not mean that after accepting employment, an employee loses all his rights and he is always free to resign and then apply for appointment in some other organization. Issuance of NOC indicates that the employer has consented to the act of his employee seeking employment elsewhere. There is no law, which regulates grant of NOC. Section 13 of the Indian Contract Act, 1872 defines ‘consent’ and Section 14 defines “Free consent”, which are reproduced below:-

“13. 'Consent' defined.—

Two or more persons are said to consent when they agree upon the same thing in the same sense.

14. ‘Free consent’ defined.—Consent is said to be free when it is not caused by—

(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16 or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.”

9. The contention made by learned counsel for the petitioner that the condit