Court No. - 33
Case :- WRIT - A No. - 6909 of 2020 Petitioner :- Dr. Prashant Pratap Singh And Others Respondent :- Uttar Pradesh University Of Medical Sciences And Another Counsel for Petitioner :- Varun Singh Counsel for Respondent :- Rohit Pandey, Vinay Kumar Singh Alongwith Case :- WRIT - A No. - 7614 of 2020 Petitioner :- Dr. Sunil Kumar And Another Respondent :- U.P. University Of Medical Sciences And Another Counsel for Petitioner :- Varun Singh Counsel for Respondent :- Rohit Pandey And Case :- WRIT - A No. - 6910 of 2020 Petitioner :- Dr. Vandana Verma And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Man Bahadur Singh,Ashish Srivastava,Jitendra Singh Counsel for Respondent :- C.S.C.,Rohit Pandey,Vinay Kumar Singh And Case :- WRIT - A No. - 4721 of 2021 Petitioner :- Dr. Archana Verma Respondent :- Uttar Pradesh University Of Medical Science And 2 Others Counsel for Petitioner :- Varun Singh Counsel for Respondent :- Rohit Pandey And Case :- WRIT - A No. - 4880 of 2021 Petitioner :- Dr. Vandana Verma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Jitendra Singh,Ashish Srivastava,Man Bahadur Singh Counsel for Respondent :- C.S.C.,Rohit Pandey
Hon'ble Ashwani Kumar Mishra,J.
1. This bunch of writ petitions are by different Doctors substantively appointed in the Uttar Pradesh University of Medical Sciences at Saifai, Etawah (hereinafter referred as Saifai Medical College). These doctors were desirous of applying against different faculty positions advertised in a newly established All India Institute of Medical Sciences, Raebareli (hereinafter referred as AIIMS, Raebareli). The advertisement issued by the AIIMS required a no objection certificate to be obtained from the previous employer i.e. the Saifai Medical College. The first set of writ petitions i.e. Writ Petition No.6909 of 2020 (leading petition), 7614 of 2020 and 6910 of 2020 have been instituted with a prayer to direct the Saifai Medical College to grant no objection certificates to the petitioners for applying pursuant to advertisement in question. Interim protection was granted by this Court vide orders dated 01.09.2020, 29.09.2020 and 01.09.2020 in first set of petitions. One of the interim orders dated 01.09.2020 passed in leading Writ Petition No.6909 of 2020 is reproduced hereinafter:-
''Heard learned counsel for the petitioners and Sri Rohit Pandey, learned counsel appearing for the U.P. University of Medical Sciences, Saifai, Etawah, respondents Nos. 1 and 2.
The petitioners 1 and 2 are working as Lecturer in the Orthopaedic Department of U.P. University of Medical Sciences, Saifai, Etawah. Petitioner No.3 is an Assistant Professor in Paediatric department in the same University, while petitioner No.4 is a Professor and Head of Forensic Medicines Department. Petitioner No.5 is a Professor (Junior Grade) in the Department of Neurology in the same University. They have applied for selection on different posts in different institutions and for which interview are said to be scheduled since 3 September 2020. The respondents-University is resisting issue of No Objection Certificate to the petitioners. The submission of learned counsel for the petitioners is that the University cannot withhold the issuance of No Objection Certificate as petitioners could not be treated as bonded employees and be prevented from seeking better prospects.
It is further submitted by learned counsel for the petitioners that in similar facts and circumstances, this Court in Writ-A No.4739 of 2020 Dr. Rafey Abdul Rahman v. U.P. University of Medical Sciences and 2 others, has passed an interim direction to the respondent-University to provisionally issue No Objection Certificate, subject to final decision in the writ petition. Learned Counsel for the respondent-University, on the other hand, submits that looking to the present situation that has emerged on account of the COVID-19 pandemic, it is inexpedient to grant a No Objection Certificate to the petitioners to go for employment elsewhere.
Pima facie, there is no authority in law that may empower the University or any employer to prevent his employee from seeking employment elsewhere or to run for better prospects.
A prima facie case is made out.
Connect with Writ-A No.4739 of 2020 and list alongwith it on the date fixed in the said matter.
Let a counter affidavit be filed on behalf of respondent Nos.1 and 2 by Sri Rohit Pandey, within four weeks.
Meanwhile, respondent Nos.1 and 2 are ordered to issue the requisite No Objection Certificate in the prescribed format forthwith enabling the petitioners to appear for interview. In case of selection and offer for appointment the petitioners joining with their new employers will be subject to leave of this Court.
Let this order be communicated to the Vice-Chancellor, Uttar Pradesh University of Medical Sciences, and the Registrar, Uttar Pradesh University of Medical Sciences, Saifai, Etawah, forthwith by the Joint Registrar (Compliance).”
2. Pursuant to the aforesaid order passed by this Court most of the petitioners have been issued no objection certificate and they have been selected for appointment at AIIMS, Raebareli. The petitioners thereafter submitted their resignation from the Saifai Medical College but their resignation has not been accepted apparently on the ground that their services are eminently required in view of the COVID-19 Pandemic. Writ petition Nos.4721 of 2021 and 4880 of 2021 were filed contending that some of the petitioners have already submitted their resignation from Saifai Medical College and, therefore, they may not be required to obtain any No Objection Certificate. These two petitions are also clubbed with this bunch of cases. Amendment application thereafter has been filed adding a prayer to command the AIIMS, Raebareli to extend the period of joining for the petitioners in view of the fact that they have so far not been relieved by the Saifai Medical College. Pleadings have been exchanged and with the consent of learned counsel for the parties all the writ petitions are taken up for hearing at the admission stage itself. The petitions are being disposed of by this common judgement.
3. I have heard Sri Rakesh Pande, learned Senior Counsel assisted by Sri Varun Singh, Sri M. B. Singh for the petitioners, learned Standing Counsel for the State, Sri Rohit Pandey, learned counsel for the Saifai Medical College and Sri Vinay Kumar Singh, learned counsel for AIIMS, Raebareli and perused the materials brought on record.
4. Learned Senior Counsel for the petitioners states in the applicable service rules there does not exist any provision which prohibits the petitioner from applying for appointment in a different institution. Submission is that the restriction imposed by the employer in not permitting them to apply for better carrier prospects at AIIMS, Raebareli is violative of Article 14 and 16 of the Constitution of India. The petitioners rely upon an order passed by this Court in Writ Petition No.898 of 2021 to submit that right of a teacher to opt for a better carrier prospect by submitting resignation cannot be curtailed in absence of any stipulation in that regard in the service rules. Following passage of the aforesaid judgement is relied upon:-
“The fact narrated in the writ petition that other teachers working in the institution have been relieved within the period of one month from the date of submission of resignation is not disputed.
It can also not be disputed that the Vice Chancellor of the University did not communicate his decision on the resignations submitted by the petitioners on 15.10.2020 till 27.01.2021 when he decided to reject their request. As per Rule 100 extracted above, an employee can resign from services by giving three months notice. Three months notice period had expired on 15.01.2020 but the Vice Chancellor sat tight over the matter till directions were issued to him to take a decision. The submission of learned counsel for the petitioners is that after expiry of the period of three months from the notice, the resignation would be deemed to have been accepted as decision of refusal had not been communicated to the petitioners.
The said submission finds substance. From the reading of Regulation 100 though it appears that the resignation cannot be claimed as a matter of right but for the peculiar facts of the case that the reason of the resignation in the present case is the selection of the petitioners in a prestigious institution like AIIMS, they cannot be restrained from making progress in their career on the premise that, in case, they are allowed to be releived from the institution, the number of teaching faculty would fall than the prescribed standard.
The said reason for refusal to accept the resignation of the petitioners in the order dated 27.1.2021 passed by the Vice Chancellor of the University, therefore, is found irrelevant.
Taking into consideration of the regulations governing services of the petitioners and the fact that the petitioners had appeared in the interview for the post of Associate Professor after getting No-Objection Certificate from the respondent and that they have submitted resignation well in time, i.e. soon after their selection on the posts of Associate Professor in AIIMS, this Court does not find any merit in the order of the Vice Chancellor dated 27.01.2021 rejecting the prayer of the petitioners for accepting their resignation.
Further, an employee who seeks to resign from service foregoes all benefits of services. The resignation submitted by the petitioners shall be deemed to have been accepted on the expiry of period of three months from the date of notice as decision for refusal has not been made nor communicated. The only leeway given to the University authority in the regulations is that the faculty member who tenders his resignation may be directed to continue to work for three months which is the notice period. The resignation cannot be rejected on the ground that the petitioners did not work after one month of tendering their resignations. The request cannot be declined as no disciplinary proceedings are either initiated or completed against the petitioners.
The decision of the Vice Chancellor is, therefore, set aside. A direction is issued to the respondent No.1 i.e. Vice Chancellor, Saifai, Etawah, U.P. to relieve the petitioners forthwith and provide necessary experience certificates and ancillary papers enabling them to join in AIIMS, Deoghar.
The writ petition is allowed.”
5. The services of petitioners are governed by the Service Rules applicable for the doctors employed at Sanjai Gandhi Post Graduate Institute, Lucknow i.e. Sanjai Gandhi Post Graduate Institute of Medical Sciences, 1st Regulation, 2011. With reference to the provisions contained in Service Rules as well as the Uttar Pradesh University of Medical Sciences Saifai Etawah, Act 2015, it is contended that no prohibition could be culled out in the statutory scheme which restricts the right of a doctor to apply for better carrier prospect elsewhere. It is also urged that petitioners otherwise were seeking employment at AIIMS, Raebareli which is a premier medical institution established by the Central Government and the interest of State was adequately protected inasmuch as the patients of the State in a different area were to be served by providing them medical facilities by the petitioners. Submission is that neither the statues nor the predominant public interest would come in the way of petitioners opting for employment elsewhere and, therefore, Saifai Medical College is not justifying in interfering with petitioner's right to apply for better carrier prospect.
6. Sri Rohit Pandey, learned counsel for the Saifai Medical College submits that it was for handling the emergency situation created on account of COVID-19 pandemic that restrictions have been placed upon petitioners' leaving the organization and the institute otherwise has no objection to their leaving.
7. Sri Vinay Kumar Singh, learned counsel for AIIMS, Raebareli states that the petitioners have not joined despite repeated opportunity and, therefore, they have no right to be allowed joining in such circumstances. It is also contends that maximum period of joining is only six months, which has expired. However, upon a pointed query raised to the learned counsel it is admitted that the vacancy against which petitioners had applied and were selected have not been re-advertised so far. Their posts, therefore, continues to remain vacant.
8. From the respective submissions advanced by learned counsel for the parties and upon perusal of the materials placed it is apparent that the relevant service rules governing the conditions of petitioners' services do not put any embargo or restrictions upon petitioners leaving the Saifai Medical College for better carrier prospect elsewhere; AIIMS Raebareli in this case. The appointment letters issued to petitioners also do not contemplate any such embargo. In the absence of any stipulation in the service rules of the Saifai Medical College or term of petitioners engagement/appointment it would not be open for the respondents to deny permission to the petitioners to apply for employment elsewhere by issuing no objection certification. Any interference in the petitioners' right to apply for better career prospects, in the absence of enabling provisions or terms of appointment, would clearly offend right of equal opportunity to the petitioners guaranteed under Article 16(1) of the Constitution of India.
9. Petitioners, otherwise, have been permitted to apply for employment at AIIMS, Raebareli, pursuant to the interim order granted by this Court. In such circumstances, the writ petitions filed by the petitioners seeking permission to apply for employment at AIIMS, Raebareli are liable to succeed and are, consequently, allowed.
10. The Writ petition Nos.4721 of 2021 and 4880 of 2021 where the petitioners have tendered their resignation also deserves to be allowed in view of what has been observed by this Court in Writ Petition No.898 of 2021.
11. Coming next to the aspect relating to petitioners' non joining at AIIMS, Raebareli it is admitted that petitioners have not been able to join only because they were not relieved by the Saifai Medical College. There was no voluntary act on part of the petitioners in not joining at AIIMS, Raebareli. It is only pursuant to this Court's order that they are now being permitted to avail of the alternative employment secured by them at AIIMS, Raebareli. The non-joining of petitioners at AIIMS, Raebareli, therefore, is liable to be condoned, particularly as petitioners have already been selected at AIIMS, Raebareli and it is admitted that no fresh advertisement etc. has so far been issued against the vacancies on which writ petitioners have been selected. No public purpose would be served in denying the petitioners to join and then to undertake a fresh exercise for recruitment by advertising these very vacancies.
12. Learned Counsel for the AIIMS, Raebareli points out that maximum period for joining at AIIMS, Raebareli under the rules is six months. In normal circumstances this would be the appropriate timeline for a candidate to join. This timeline, however, would not be relevant in the facts of the present case where petitioners have not been able to join on account of specific denial of permission by the previous employer i.e. Saifai Medical College. The impugned action of the Saifai Medical College has not been approved of and the petitioners' right to apply for appointment elsewhere has been recognized. In such circumstances a direction is issued to the Saifai Medical College to relieve all the petitioners within a period of two weeks from today and the AIIMS, Raebareli thereafter would allow them to join pursuant to their respective selection in the institute, within a further period of one month.
13. All the writ petitions are, accordingly, disposed of. No order is passed as to costs.
Order Date :- 27.7.2021 Abhishek Singh JUSTICE ASHWANI Digitally signed by JUSTICE ASHWANI KUMAR MISHRA +05'30'
KUMAR MISHRA Date: 2021.07.29 15:29:17