Non-issuance of NOC by colleges to staff: Gauhati HC suspends government communication

 STAFF REPORTER

GUWAHATI: A bench of the Gauhati High Court suspended until further order the communication (AHE.498.2018.59, dated June 14, 2022) issued by the Assam Government in the Higher Education Department regarding the non-requirement of ‘No Objection Certificate (NOC)’ from the governing body of a provincialized college by an incumbent serving in that college for his or her application to any other post in an government organization.

Rule 24 of the Assam College Employees (Provincialization) Rules, 2010, provides, “No Objection Certificate for Higher Studies and Applying for Jobs: The Governing Body shall issue a No Objection Certificate to the college employees for applying for admission to a course of higher studies and for other jobs.”

Meanwhile, the State Government in the Higher Education Department (vide communication No.AHE.498.2018.59 dated June 14, 2022) informed the Directorate of Higher Education, Assam, as well as the Directorate of Technical Education, Assam, that, in partial modification of all orders and communications notified earlier, the teaching and non-teaching staff of all categories of colleges will not require any No Objection Certificate (NOC) from concerned colleges, universities, or polytechnics for applying to any other posts in any government organization from the issuance of the said letter, dated June 14, 2022, observing further that any aspiring candidate may inform the respective college/university authorities of his/her application to any other post under any organization including state/central government.

The petitioner, Dipti Sikha Nath, possesses all the requisite eligibility for the post of Assistant Professor in provincialized colleges of the state as well as for the post of Assistant Professor in any university and is also looking for avenues for her appointment.

Placing the office memorandum dated January 24, 2022, of the State Government in the Higher Education Department pertaining to the guidelines for selection of assistant professors in provincialized government and government model colleges of Assam, amongst others, the petitioner submitted that during such selection, a candidate is entitled to a maximum of two marks, one mark for each completed year of service, towards teaching experience for serving in a college. The petitioner also submitted that Rule 24 of said 2010 Rules empowered the governing body of a provincialized college to decline to issue such an NOC if they are of the view that the exit and/or absence of the teacher in the college will affect the students and the academics of the college, and therefore, it is the governing body of the college only who, after due consideration, is required to issue the NOCs in terms of said Rule 24 of said 2010 Rules.

It is also placed before the Court that by issuing a mere communication like the impugned communication dated June 14, 2022, issued by the Commissioner and Secretary to the Government of Assam in the Higher Education Department, the respondent authorities cannot bypass the provisions of said Rule 24 of the 2010 Rules, and hence the writ petition.

Section 12 of the 2005 Act empowers the government to frame rules. The Assam College Employees (Provincialization) Rules, 2010, have been framed under the provisions of Section 12 (1) of the said Assam College Employees (Provincialization) Act, 2010, and therefore, the provisions made in the said 2010 Rules have statutory force. The standing counsel the Higher Education Department, on being enquired in that regard, placed a very recent judgment of the Supreme Court decided on March 15, 2023 in the case of Ashok Ram Parhad and Others versus State of Maharashtra & Others in civil appeal No 822/2023.

Considering the law laid down by the apex court, the bench suspended the interim communication until further order of the Court.

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