Dr. Ajay Kumar Chauhan vs State Of Himachal Pradesh and others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:-

“1. That the action of respondents No. 1 to 2 in not issuing the No Objection Certificate and Vigilance of Clearance Certificate, in favour of the petitioner for the purpose recruitment to the post of Assistant Professor, Department of General Medicine in AIIMS Bilaspur may kindly be held illegal, arbitrary, unreasonable, unjustified, in valid, unconstitutional, discriminatory, violative of Articles 14 and 16 of the Constitution of India and unsustainable in the eyes of law.

That the respondents/respondents No. 1 to 3 may kindly be directed to issue No Objection Certificate, Vigilance Clearance Certificate, Certificate of Major/Minor penalty and Integrity Certificate in favour of the petitioner for the purpose of recruitment to the post of Assistant Professor, Department of General Medicine in All India Institute of Medical Sciences Bilaspur, District Bilaspur, H.P. so that he may be allowed to submit NOC on or before 25.06.2024 in order to appear in interview which is scheduled in the first week of July, 2024.

To direct respondent No. 1 and 2 to issue provisional No Objection Certificate in favour of the petitioner till the final outcome of the petition.

To direct the respondent No. 4 to allow the petitioner to be interviewed on the scheduled period i.e. first week of July, 2024 subjected to the out of the writ petition.”

The case of the petitioner is that he is presently serving as a Medical Officer with the Health Department of the Government of Himachal Pradesh. An advertisement was issued in terms of Annexure P-1, dated 02.02.2024, by the All India Institute of Medical Sciences, Bilaspur. In terms of said advertisement, various posts of Assistant Professor were advertised including three posts of Assistant Professor in the specialty of General Medicine. One post was for the unreserved category and two for OBC category. As the petitioner was fulfilling the eligibility criteria for applying for the post in issue, accordingly, he made a request through proper channel to the respondent-Department, to issue him a No Objection Certificate. The request was made for the reason that in terms of Clause 6 of the advertisement under the heading ‘Important Instructions’, sub-clause 2 thereof contemplated that applicants who were already employed in Centre/State Government etc., shall root their applications through proper and channel and while forwarding the applications through proper channel, a certificate to the effect that the State Government has no objection, in case the Officer applies and secure selection was to be submitted. As the State Government did not issue such a No Objection Certificate to the petitioner, accordingly, the petitioner approached this Court.

On 24.06.2024, on the application of the petitioner qua the grant of interim relief, the following order was passed by the Court:-

“CMP No.9399 of 2024

Notice in above terms. As prayed for, the respondents are directed to issue a provisional No Objection Certificate to the petitioner to allow him to participate in the process of appointment against the post of Assistant Professor in the Department of General Medicine in AIMS Bilaspur, subject to the final adjudication of the writ petition. It is clarified that the draft of provisional no objection certificate shall not confer any equity in favour of the petitioner and the issuance of the said No Objection Certificate shall abide by the final outcome of the writ petition.”

Pursuant to the said direction issued by the Court, the petitioner has participated in the process.

Learned counsel for the petitioner has submitted that the act of the respondent-Department of not issuing a No Objection Certificate, in favour of the petitioner is arbitrary, discriminatory and thus not sustainable in law. He submitted that the petitioner is serving the State Government as a Medical Officer. He has put in more than 14 years service. He is not under any bond etc. of the State Government, so as to continue to serve the State Government under any rigour and in these circumstances, the denial of the No Objection Certificate, is not sustainable in the eyes of law, as it denies the petitioner the opportunity to avail better avenues in life. Learned counsel further submitted that No Objection Certificate has been issued by the Department to many Doctors and in this background also, denial thereof to the petitioner is not sustainable in law.

On the other hand, learned Advocate General has submitted that the petitioner has no right to invoke the jurisdiction of this Court to seek a mandamus for issuance of a direction to the Department, to grant a No Objection Certificate to the petitioner. By referring to the reply filed by the Department, learned Advocate General submitted that as there is shortage of Medical Officers in the Department, it is on this count that the prayer of the petitioner for grant of No Objection Certificate, has been rejected. He further submitted that the petitioner happens to be a regular employee of the Health Department of the State. The health services of the State are primary services, which are rendered to the residents of the State. Himachal Pradesh being a hilly State, the PHCs and CHCs and other Health Institutions are situated in the remotest of the areas of the State. The residents of Himachal Pradesh are primarily dependent upon these Medical Institutions and Medical Health Centres, which are being run by the Government of Himachal Pradesh and in view of the fact that there is paucity of Doctors, the State is not in a position to issue No Objection Certificates to the Doctors, so as to enable them to seek employment somewhere else. Learned Advocate General further apprised the Court that the Health Department has not issued any No Objection Certificate in favour of any Doctor, in the year 2024 or for the process, in which the petitioner intends to participate, so as to suggest that the State is discriminating the petitioner vis-a-vis similarly situated persons.

Accordingly, he submitted that in the light of the fact that there is no vested right in the petitioner to seek a mandamus that the respondent-Department should issue a No Objection Certificate to him to seek greener pastures in life, by ignoring the realities of the Department, the petitioner is not entitled for the relief, being prayed for. He again stressed that no discrimination has been meted out by the State to the petitioner as none has been issued any No Objection Certificate, voluntarily by the State Government, either this year or in the previous year.

In rebuttal, learned counsel for the petitioner has again reiterated that the future prospects of the petitioner cannot be scuttled and the bald assertion of the State that there is a paucity of Doctors, cannot be the reason to deny a No Objection Certificate and he stated that the petition be allowed, by ordering the respondents to issue a No Objection Certificate to the petitioner.

I have heard learned counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith.

The moot issue that is involved in this writ petition is as to whether an incumbent like the petitioner, who is serving the Health Department on regular basis, has any legal right to seek a mandamus that a No Objection Certificate be issued in his or her favour by the employer, in case such an incumbent intends to participate in the process for selection against a post in some other State or Institution.

Article 226 of the Constitution of India confers the jurisdiction upon the High Court to come to the rescue of the petitioners, in case, there is a breach of any fundamental right or any legal right. Thus, before an incumbent invokes the writ jurisdiction of this Court, the minimum that has to be established by the petitioner is that either any fundamental right of his or any legal right of his, is being infringed by the respondent. By no stretch of imagination, it can be said that a Doctor, who is serving the State has any fundamental right to get a No Objection Certificate from his employer, in case, he intends to join some other State or some other institution, by leaving the parent employer. Similarly, during the course of the arguments of this case, learned counsel for the petitioner has not been able to demonstrate that there is any legal right vested in the petitioner with regard to the grant of NOC by the respondent-employer and despite the existence of such a legal right, the respondent-Department is denying the No Objection Certificate to the petitioner.

In fact, I have carefully read the writ petition and there is no whisper in the entire writ petition, from which it can be inferred that there indeed is any such legal right, which stands infringed.

Now, addressing the issue of arbitrariness and discrimination, this Court would like to refer to the Constitutional Bench Judgment of the Hon’ble Supreme Court of India. In E.P. Royappa Vs. State of Tamil Nadu and another, 1974 (4) SCC Page 3, in which Hon’ble Supreme Court has been pleased to hold that “Article 16 of the Constitution embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species, Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination.” Hon’ble Supreme Court was further pleased to hold that “equality is antithetic to arbitrariness. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.”

Thus, it is evident and apparent from the judgment of the Hon’ble Supreme Court that Articles 14 and 16 strike at the arbitrariness in the State action and their intent is to ensure fairness and equality of treatment. The requirement of these two Articles is that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality.

If we apply the principles so laid down by the Hon’ble Supreme Court in the facts of the case, it is not the case of the petitioner that in the same process for which the petitioner has applied and qua which he is seeking a No Objection Certificate from the Department, there are other applicants similarly situated as the petitioner to whom the State has granted No Objection Certificate but the same is being denied to the petitioner. Therefore, the contention of the petitioner that there is discrimination, in the considered view of this Court, has no legs to stand upon. Discrimination would have had been there had the State discriminated between similarly situated persons.

Learned Advocate General has made a statement before this Court that in the current year No Objection Certificate has voluntarily been issued to none, by the Health Department. Learned counsel for the petitioner could not demonstrate that the statement made at the bar, by the learned Advocate General, was incorrect. His contention is that three No Objection Certificates, as per his instructions, were issued voluntarily by the Department in the year 2022. In the considered view of this Court what happened in the year 2022 will neither govern nor determine the approach of the Government with regard to the issuance of the No Objection Certificates in the year 2024. Government is well within its power to assess in the current situation as to whether it is in a position to dispense with the services of its Medical Officer and if not, it is well within its power to deny the issuance of a No Objection Certificate primarily on these basis. Otherwise also, it is not a vested right of an employee to seek a No Objection Certificate in the circumstances in which the petitioner is seeking the same. Respondents are well within their domain to refuse the same.

This Court, at this stage, would also like to refer to the judgments of the Hon’ble Division Bench of this Court on the subject.

In Mandeep Tomar Vs. State of H.P (supra), the petitioner had approached this Court, seeking a writ of certiorari against the letters in terms whereof the No Objection Certificate sought for by the petitioner was refused, which was required by the petitioner to allow him to participate in the process of selection for the post of Assistant Professor at AIIMS, Bilaspur and PGIMER, Chandigarh. While dismissing the said writ petition, Hon’ble Division Bench was pleased to hold as under:-

“4. It is seen from the record that on 23.12.2019, the respondents- ealth and Family Welfare Department had refused NOC to various doctors who intended to apply for the posts of Assistant Professor in AIIMS, Bilaspur. This was due to reason that State was facing shortage of Specialist doctors. It is for this reason that NOC was refused to the petitioner on 06.012020 regarding the post of Assistant Professor in AIIMS, Bilaspur and on 20.01.2020 regarding the post of Assistant Professor at PGIMER, Chandigarh. The respondents have taken a consistent stand not only with respect to the petitioner, but with respect to other applicants/specialist doctors as well. Petitioner was not singled out. He has not been able to demonstrate as to how the action of respondents in rejecting his claim for issuance of NOC can be held as discriminatory. No rejoinder has been filed by the petitioner controverting the stand of the respondents. It is also not the case of the petitioner that State is not facing shortage of Specialist doctors. In case the State had shortage of specialist doctors, then it certainly was within its right to refuse issuance of NOC to its employee/petitioner to apply for the post of Assistant Professor in other institutes.

In view of the above uncontroverted factual position, we find no merit in this writ petition and the same is accordingly dismissed. The pending miscellaneous applications, if any, also stand disposed of.”

Similarly, in CWP No. 1968 of 2007, titled State of H.P. Vs. Dr. Sanjay Vikrant, the State had filed the writ petition against the order passed by the Erstwhile Himachal Pradesh Administrative Tribunal, in terms whereof the State of Himachal Pradesh was directed to issue a No Objection Certificate to the original applicant to enable him to apply for a post of Associate Professor in AIIMS at New Delhi.

While deciding this writ petition, Hon’ble Division Bench of this court was pleased to hold as under:-

“Even though there is no specific provision anywhere in the Rules of the State Government relating to the grant or refusal of NOC with respect to the State Government employees for their being enabled to compete for jobs outside the State, even while being in the employment of the State, in our considered opinion, the availability, vesting and the extent of the executive power of the State as per Article 162 of the Constitution of India is plenary in nature and being exercised objectively, fairly and in compliance to Article 14 of the Constitution of India without it being arbitrary, the State Government has the power, authority and jurisdiction to consider and decide every application for grant of NOC and if in the opinion of the State Government, based upon the aforesaid criteria, the NOC is required to be refused, it has the power, authority and jurisdiction to do so. The reason advanced by the State Government-writ petitioner in this petition as also argued by Mr. M.S. Chandel, learned Advocate General, is that the respondent is the only doctor available in IGMC with the Super Specialty qualification of Nephrology. According to Mr. Chandel, respondent had joined the services of the State Government as an ordinary MBBS doctor and while in the service of the State Government he had proceeded for higher studies, initially for doing M.D. in medicine and thereafter in the Super Specialty course of D.M. in Nephrology. In the year 2002 the respondent was appointed as Assistant Professor in the Super Specialty Department of Nephrology and since then has been working there. Recently the State Government has created a post of Associate Professor as well as a post of Professor and in terms of Recruitment and Promotion Rules the respondent is eligible for being appointed on the higher post of Associate Professor. Mr. Chandel actually has made a statement before us that because of his eligibility the State Government will take steps for according consideration to the respondent for his promotion to the higher post of Associate Professor. We on our part also feel that the respondent has very fair chances of being promoted because of his eligibility as also the fact that he perhaps is the only person available as well as eligible in terms of R&P Rules. Be that as it may, the fact remains that the overriding consideration, rather the only consideration of the Super Specialty Department of Nephrology being left without any doctor is germane as well as relevant to the refusal of NOC on the part of the State Government. The act of the State Government in refusing the NOC on this count can thus neither be called as arbitrary nor whimsical. It is based upon the aforesaid objective criterion and has a direct nexus with the object sought to be achieved.

If the respondent is very keen to better his career prospects, to advance his career and to attain what he thinks are brighter gains than available in IGMC Shimla, nothing stops or prevents him from resigning from the government employment. Here we would also like to meet the contention of Mr. Dogra about the right of the respondent of being considered for higher post. Yes, he has the right of being considered and that consideration basically is available with AIIMS. The right to consideration does not mean and cannot be extended to include the right to get NOC from the State Government for routing his application through the State Government. Both stand on different footings.

The Tribunal in the impugned interim order directed the petitioner-State to grant NOC provisionally to the respondent. In the facts and circumstances of this case, we find that the grant of NOC even provisionally would amount to granting relief to the respondent finally because equipped and armed with the provisional NOC if the respondent actually gets selected in AIIMS his purpose is achieved. Laced with the selection and appointment order the respondent can at that stage say good-bye to IGMC as well as the State Government. If that happens, the State Government perhaps will not be in a position to prevent the respondent from leaving IGMC as well as the Department of Nephrology without any doctor.”

On the basis of the said rational, it set aside the order passed by the Erstwhile Tribunal.

A careful perusal of the findings that have been returned on the issue by both the Hon’ble Division Benches clearly demonstrates that the grant of No Objection Certificate is not a matter of right and in the light of the fact that State is experiencing the shortage of Doctors, in case the No Objection Certificate is being refused by the State, on account of its such circumstances, the Courts cannot be compelled to issue a writ of mandamus directing the State to issue such No Objection Certificate.

In view of the above discussion, as this Court does not find any merit in the present writ petition and further as this Court does not find any illegality in the act of the respondents of denying No Objection Certificate to the petitioner, this writ petition is dismissed. Interim stands vacated. Pending miscellaneous application(s), if any, also stand disposed of accordingly.