Issuance of 'No Objection Certificate' (NOC) in cases of Deputation - View of the Courts in India

NOC

It is often the case that the Government Employees seek deputation from their parent organization to any other organization on account of better job prospects, salary etc. However, the parent organization is not so generous in most of the cases and refuses to grant the "No Objection Certificate" which is a necessary pre-condition for going on deputation. The law is fairly settled on this issue. However, it depends upon the facts and circumstances of each case and there is no straight jacket formula in this respect. Belowmentioned is my brief research on this subject.

 

Important Case Laws

1.         Charan Singh Bhanvariya v. UOI and Ors. - 2010 SCC OnLine Del 2508.

2.         Md. Shahbaz Alam v. Union of India & Ors. - 2012 SCC OnLine Del 180.

3.         Sgt.Gedela Yugandhar v. UOI & Ors. - W.P.(C) 722/2010

4.         Cpl N.K.Jakhar vs Uoi & Ors. -  WP(C) No.9088/2008

5.         CPL. SA Ansari v. Union of India & Ors. - W.P.(C) 5073/2013

Issues Involved

1.       Whether or not NOC in cases of similarly situate persons has been granted on earlier occasions?

2.       Whether or not NOC has been granted to any other employee on this occasion?

3.       Is there a departmental policy that governs the rules relating to deputation or issuance of no objection certificates?

4.       Whether under such rules, the employee is entitled to claim for a Discharge Certificate or NOC?

Interpretation and the View adopted by the Courts

Issuance of NOC is a clear case where the doctrine of legitimate expectations can be invoked. This has been held in Sgt.Gedela Yugandhar v. UOI & Ors.:

“……. By and large legitimate expectation arises in situations of expectancy which are in normal course expected, though not guaranteed by way of statutory rights. The right under legitimate expectation may not be an absolute right but ensures the circumstances in which the expectation may be denied or restricted. A case of legitimate expectation always arises when a person represents or by past practice arouses expectation which would be within its power to fulfil.”

In another case titled as CPL. SA Ansari v. Union of India & Ors., W.P.(C) 5073/2013, the Court directed the Respondent to issue a NOC and observed that:

“13. In an unreported decision dated December 16, 2008 in WP(C) No.8760/2008 Pradeep Kumar v. UOI & Anr., considering a pari-materia policy framed by the Air Force, where the petitioner therein had similarly applied to take the examination for the post of Assistant Commandant in a Para Military Force but had not completed 7 years service but by the time the result was declared and when he sought a discharge, had completed 7 years service, the Division Bench held that the ethos of the policy was that a person should have served Air Force for 7 years before he could seek discharge and thus it hardly mattered whether on the date when he had applied for the job the person had not completed 7 years service; if when the person sought discharge he had served for 7 years, the right to be discharged, for Group “A” posts, would automatically flow.”

There are a number of decisions that involve various situations where an employee is asking the employer for issuance of NOC for the purposes of deputation. The general view and line of thought adopted by the courts is that the employee must fulfil the conditions prescribed under the policy framed by the employer. If that is the case, then the employee is eligible for the grant of NOC as deputation is meant to further the career prospects and a disgruntled and a dissatisfied employee would be of no use to the parent organization. While balancing between the socio-economic needs of the employee and organizational and efficiency related needs of the employer, the courts have adopted an approach that favours the employees.

‘Shortage of manpower’ is a reason that is often cited by the employers in such cases. However, such reasons must be categorically mentioned while rejecting the application for the grant of NOC. According reasons at a subsequent stage of litigation would be fruitless for the employer. Thus even though issuance of NOC is not a right and only a privilege, yet sufficient reasons must be accorded while rejecting such application and such exercise of power is clearly amenable to the jurisdiction of the courts.