No Delay In Producing NOC For Appointment - SC Directs Haryana PSC To Appoint Appellant To The Post Of Assistant Professor
A two-judge Bench of Justice M.R. Shah and Justice Sanjiv Khanna has held that there was no delay on the part of the Appellant to produce the No Objection Certificate and directed that the Appellant be issued an appointment letter for the post of Assistant Professor (History) as he was denied the same due to delay on part of the Department of Education to issue a NOC.
The Appellant filed an appeal in the Supreme Court challenging the decision of the Division Bench of the Punjab & Haryana High Court which dismissed the appeal of the Appellant, wherein he challenged the non-issuance of appointment letter to him, despite fulfilling the requirement of obtaining a NOC from the Education Department and obtaining more marks than Respondent no. 4, who got selected.
The Appellant contended that he had appeared for the examination for the post of Assistant Professor (History) and had requested for the NOC from the Department of Education, which had to be submitted at the time of the interview. He filed a writ in the High Court seeking that a direction be issued to the Department of Education to issue the same to the Appellant.
The Single Bench of the High Court had imposed a cost of Rs. 50,000 on the employer who did not grant NOC to him on time, while at the same time refusing to pass an order in favour of granting employment to the Appellant. Against this, an LPA was preferred by the Appellant, which was heard by the Division Bench of the High Court. However, in its decision, the Division Bench of the High Court held that there was a delay on part of the Appellant in applying for the NOC and that he had ample time to obtain it from the date of advertisement till the date of submission.
The Apex Court noted that there was no delay or any fault of the Appellant, in this context, the Bench opined -
"Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court."
The Supreme Court further held-
"Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4."
The Court invoked Article 142 and directed that Respondent no. 4 shall not be dismissed from his service and he shall be retained since he joined in 2018 and that the said Respondent be accommodated on any other vacant post of Assistant Professor (History). However, the Court also observed that on the principle of 'No Work No Pay', the appellant would not be entitled to any back wages but would be entitled to continuity in service for the purpose of seniority, pay fixation etc.
Accordingly, the Court allowed the appeal.
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