Excerpt
A writ petition(S/B) No. 115 or 2021 filed by Mr. (Dr.) Dharmendra Kumar Shahi as against the Board of Management and another. The writ claimed to retain the post of Associate Professor with the principal as Respondent 1 and the Board of management as Respondent 2.
Facts
The petitioner was appointed as Associate Professor (Geography) in D.A.V. P.G. College of respondent 1. Meanwhile, the JNU called for the post of an associate professor in the Centre of Russian and Central Asian Studies School of International Studies at JNU. The petitioner was eligible for the post so he took permission from both respondents 1 and 2 and attended the interview. The JNU offered him a job with an appointment dated 11.11.2020 and he accepted the appointment offer by 13.11.2020. A letter dated 16 11.2020 directed the petitioner to join his respective post within 4 months and if no response from the petitioner, it be deemed that he is no longer interested. The petitioner was very eager to join JNU. He wanted to keep his lien with the respondents. On 18.01.2021, and 02.02.2021 he went to the respondents and asked them to grant him leave without pay for one year and a permit to join the JNU.
Order dated 22.02.2021, the petitioner’s request for NOC was rejected by respondent 1. The grievance of the petitioner was that the respondents already gave him No-Objection Certificate (NOC). But they were not willing to grant him leave without pay for one year so that he cannot join the JNU. Thus, the writ petition was filed before the High Court of Uttarakhand.
Petitioner’s Contention
According to the Ministry of Personnel, Public Grievances and Pensions Government of India has issued one Office Memorandum. It dealt with the resignation and lien to be retained by government employees dated 26.12.2013, said by learned counsel representing the petitioner. He also argued that since the petitioner would be on probation for two years in JNU. As per clause 5 of the office memorandum he can keep his lien with respondents 1 and 2 for two years of time duration. Moreover, the respondents have already issued NOC in favour of the petitioner. Now they have no justification for relieving the petitioner from the post. The advocate took the State of Rajasthan and others v. S.N Tiwari and others, as precedent. He further argued that as the petitioner was not required any lien for the post of Associate Professor at JNU he had full right to continue the lien with his parent employer. Thus, the respondents were not justified in denying to keep the petitioner’s lien on the present post.
Moreover, the same case happened with Prof. Rajeev Sijaria who was before working in Chaudhary Charan Singh University, Meerut and was then appointed to JNU but he was permitted to keep his lien with its parent employer. It was urged by the counsel that the same benefits should be given to the petitioner to maintain equality.
Respondent’s Contention
Mr Ramji Srivastava learned counsel for the respondents argued that the Office Memorandum dated 26.12.2013 would not be applicable for both the respondents and the petitioner. As the petitioner was working under the first statute of HNB Garhwal University. Thus, he argued that the petitioner was not an employee of central or state and so, he cannot claim right for the same.
The NOC given by the principal on 05.08.2019 stands vague as it only permitted the petitioner’s candidacy rather than to leave the college.
Keeping in mind the interest of students, the college management already decided that any faculty seeking appointment for the same post in any other educational institution will not be relieved and he will not be able to keep lien as well. Additionally, he also argued that if the petitioner was desirous of joining the JNU then he cannot claim his right to keep his lien with the College. Finally, he distinguishes the case of S.N. Tiwari and others as it deals with the deputation of the petitioner. But the petitioner was not going to JNU on deputation and hence, the said case law was being misplaced.
Court’s Observation
The court observed that the petitioner is not justified in retaining his lien for his post. According to Service Jurisprudence, a person cannot claim the right to hold a lien with his old employer. Further, the Court also held that the petitioner’s reference to the office memorandum on 26.12.2013 and 27.08.2018 is not applicable as these memorandums only refer to a government employee. The Court held that the NOC issued by respondent 1 does not give any word to the petitioner that it would relieve him from the college or would let him keep his lien. The NOC permitted the petitioner to undergo the selection process. Thus this NOC doesn’t act as evidence against the respondents. And also the court held that the case S.N. Tiwari and others were misplaced in this current case as it does not deal with the deputation and the petitioner is directly recruited by the JNU for the post of associate professor.
The Court also held by quoting the example of Professor Rajeev Sijaria who worked in Chaudhary Charan Singh University and then joined JNU was unjustified as the Chaudhary Charan Singh University and college of respondent 1 and 2 were governed by different law bodies and exercise different powers.
Court’s Decision
The Court, in this case, held that the respondents were justified in not relieving the petitioner for the betterment of the students. As per rules, the faculty is not allowed to leave the college for the same post in another educational institution. This was all done for the welfare of the students and it is legal. Thus the Court does not find any merit in the writ filed by the petitioner, hence, held displaced.
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