Right of new employment - whether dependable on present employer?

Greetings to all

I earnestly request all to kindly enlighten with more relevant case law / provisions on the question "Is forwarding of employment applications through proper channel / submission of NOC at the time of interview in CPSUs from CPSU employee necessary when it is not insisted upon Private Sector employee?".

The Govt. of India has  issued, from time to time,  many guidelines to the affect that “ the forwarding of applications should be the rule rather than an exception. Ordinarily every employee should be permitted to apply for  outside post but they should not be done more than 04 times in a year”. Further, prospects of the bright candidates should not be hampered. Forwarding of applications Through Proper Channel or submission of NOC at the time of interview  is not required for  Private Sector employment. Further, the Government of India had also issued instructions where applications of a Government Servant for appointment / employment elsewhere should not be considered or forwarded viz. if he is under suspension, disciplinary proceeding pending against him or sanction for prosecution had been accorded or charge sheet had been filed in Criminal Court against him.

Further, the Dept. of Public Enterprises, New Delhi (a Nodal Agency for CPSUs), had deleted / cancelled the OMs dated 12-12-1982 and 14-12-1982 dealing with routing of employment applications vide DPE's OM No. 20(5)/95-DPE(GM) dated 10-12-1997 at Sl. Nos. 284 & 374 respectively as these guidelines are no longer necessary or relevant  as it is felt that with the passage of time and changing policies and economic scenario, and the maturity attained by Public Sector Enterprises. Also, OMs dated 13-06-1977,  23-05-1981 and 05-02-1985, dealing with enforcement / transfer of bond in respect of employees of Public Enterprises who leave the services of one Undertaking to join another Undertaking / Govt.,  were deleted vide OM ibid at Sl. Nos. 280, 281 & 282 respectively. However, subsequently after receiving references from various quarters, these OMs dealing with enforcement / transfer of bond had been revived with modifications vide DPE’s OM No. 15(2)/2003-DPE(GM)/GL-57 dated 29-07-2004 (Not able to keep the said OMs in the Attachment). Therefore, the OMs which were deleted and not revived are still no more relevant. From the above, it can be inferred that forwarding of applications for selection in another Undertaking / Govt. is necessary only in case of  the employee who is under bond and not otherwise. As observed in practice, each  different CPSUs are  having different set of rules with regard to forwarding employment applications of their employees to another CPSU / Govt. Organisation and not having equality amongst all CPSUs. This itself  violates equality   as envisaged under Articles 14 & 16 of the Constitution of India.

Reproduced in quotes is the text from the Questioner part in LLR July 2007:

“Hon’ble Supreme Court as well as High Courts have held in many cases that rights of an employee to seek and search better employment are not to be curbed even on the ground that he or she has got some training or even confidential data of the employer. In a recent case of American Express Bank Ltd. vs. Ms. Priya Puri, 2006 LLR 683, the Delhi High Court has held that freedom of changing employment for improving service conditions is a vital and important right of an employee which cannot be restricted or curtailed even on the ground that he or she has possessed the employer’s data and confidential information since such a restraint will facilitate the employer to create a situation such as ‘once a customer of American Express (Bank) always a customer of American Express (Bank)’ which will be violative of the rights of the employee.

Therefore, the condition imposed by us in the promotion policy for not counting the minimum qualifying period on account of applying for outside employment shall be definitely violative of the rights of the employee before the eyes of Law. More over, Govt. of India has also emphasized through its various Administrative Instructions regarding the importance of forwarding the applications of employees for outside employment for their career advancement and the same is to be followed as a matter of rule except in cases where they can be with held in public interest. More over, Public interest is also to be interpreted strictly.”

This issue  was also answered by Hon'ble High Court of Punjab & Haryana vide its judgment dated 22-03-1982 at para 8 in CWP No.392 of 1982 cited in the case of Dr.(Miss) Subhash Kaushal v. State of Punjab & others II - LLJ 1982 page 215.   As per the judgment supra,  production of "No Objection Certificate" was insisted to the candidates who are in service of  one ( the Punjab) Govt. when the same was not insisted to the other candidates who may either be in service of any other Govt. / Semi-Govt. / Authority or may not be in service at all. It was held supra, that the operation of these instructions (imposing such conditions) is likely to do injustice to the candidates who are in the service of the Govt. Thereby offending Articles 14 and 16 of the Constitution of India. This is in fact a judgment in rem having universal application in general and not restricted to parties alone.

Non-forwarding such employment application or non-issue of  NOC or imposing such conditions of forwarding applications Through proper Channel on employees of CPSU may also amount to violation of Human Rights as it is affecting the Rights relating to Life, Liberty, Equality and Dignity of the individual guaranteed by the Constitution as per the provisions under Section 2(1)(d) of the Protection of Human Rights Act, 1993. Imposing such conditions  is also causing a perennial mental agony in the minds of CPSU employees. Non-forwarding of applications may  be treated violation of Article 21 and also Article 23 by treating such acts as Forced Labour on the reason that such acts are inhibiting mobility of Govt. Employees amongst Govt. Depts. / PSUs.  In fact, Fundamental Rights cannot even be waived by any individual.

Further, terms of employment  in CPSUs are governed by the provisions of the Contract Act and such instructions are against Public Policy. In case of selection, the CPSU employee has to resign the present post before joining another CPSU even after his / her application is forwarded through proper channel. Unlike in Government Departments, there is no Right to Lien in CPSUs even after such applications are forwarded Through Proper Channel. Mere forwarding of employment applications by the present employer ipso facto  does not guarantee selection in another Organisation. Whatever the formalities are carried out  to Private Sector employee after their selection can be done to the Public Sector employee by the new employer in case his application is not forwarded Through Proper Channel or NOC was not issued.   

Despite very clear case laws, Constitutional / Human Rights provisions and knowing fully well that Administrative Instructions cannot take away Statutory Rights, all most all the CPSUs are  least bothered while issuing employment notifications imposing unwarranted conditions, who in fact requires human approach and legal education.

The following issues are needed to be answered:

1. Whether imposing such conditions on employees of CPSUs are still necessary / warranted in the present era of Globalisation, Liberalisation & Privatisation  specially when security of employment is not guaranteed  in PSUs ?. 

2. Whether prospects of bright candidates on open selection should invariably depend on forwarding of applications by the present employer to another Undertaking / Govt. Organisation?

Social minded legal practitioners may like to  take up such PUBLIC issues through PIL.

KRK RAO

MA.,MBA(HRM).,LLM(LL).,PGDIR&PM

Research Scholar