1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (S) No.294 of 2022

Order reserved on: 1-2-2022

Order delivered on: 14-2-2022

(Through Video Conferencing)

Jai Narayan Verma, S/o Late Sukhi Ram Verma, aged about 39 years,
working as Assistant Grade-3 at District & Sessions Judge, Kabirdham,
District Kabirdham (C.G.)
---- Petitioner

Versus

District & Sessions Judge, Kabirdham, District Kabirdham (C.G.)

---- Respondents

------------------------------------------------------------------------------------------------------
For Petitioner: Mr. C. Jayant K. Rao, Advocate.
For Respondent: Mr. Amrito Das, Advocate.
------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. The petitioner herein has called in question legality, validity and

correctness of memo dated 31-12-2021 (Annexure P-1) by which his

application seeking no objection certificate from the respondent herein

for applying for the post of Assistant Grade-III in the office of the

District & Sessions Judge, Raipur has been rejected finding no merit.

The aforesaid challenge has been made on the following factual

backdrop: —

2. The petitioner herein was appointed by order dated 26-3-2018 and is

presently working on the post of Assistant Grade-III in the

establishment of District & Sessions Judge, Kabirdham – respondent

herein, in pay matrix Level-4 with grade pay of ₹ 1,900/-. Thereafter,

an advertisement was published on 24-12-2021 for recruitment to the

post of Assistant Grade-III in pay matrix Level-4 with grade pay of ₹

 2

1,900/- in the establishment of District & Sessions Judge, Raipur for

which the petitioner herein made an application on 29-12-2021 to the

respondent herein seeking grant of no objection certificate for making

application before the District & Sessions Judge, Raipur for

appointment on the said post of Assistant Grade-III in terms of

eligibility condition clause (2)(7) of the advertisement (Annexure P-3)

which prescribes that the candidates who are already in Government

service shall have to mandatorily submit no objection certificate from

their present employer. The respondent herein duly considered the

application filed by the petitioner seeking no objection certificate and

by the impugned order, after evaluating the attending circumstances

and in the light of the operational Government circular dated 21-10-

1980 (Annexure R-1), rejected the same which has been called in

question in the instant writ petition.

3. The respondent herein has filed return stating inter alia that the

petitioner’s application was duly considered and since for the

establishment of respondent District & Sessions Judge, Kabirdham,

there are 31 sanctioned posts in the cadre of Assistant Grade-III out of

which 13 posts are lying vacant, therefore, in the light of circular dated

21-10-1980, the petitioner’s application has been rejected. It has also

been stated that circular dated 21-10-1980 categorically states that

the application seeking no objection would be considered in case of

Class-III clerical grade employee who intends to proceed in any other

department of the State Government on a higher pay scale by way of

direct recruitment. Since the petitioner has sought permission to

appear in the selection process for appointment on the post of

Assistant Grade-III in pay matrix Level-4 with grade pay of ₹ 1,900/-

which is equivalent to the current post held by him in the

 3

establishment of the respondent herein, therefore, his application has

rightly been rejected. It has further been submitted that though it is a

fundamental right of a citizen to practice any profession or to carry on

any occupation, trade or business, but a reasonable restriction can be

imposed under the scheme of the constitutional provision and

therefore on account of compelling circumstances and administrative

exigency, the petitioner has not been granted permission to participate

in the process of direct recruitment for the subject post and as such no

objection certificate has rightly not been granted to him to participate

in the process of direct recruitment to the post of Assistant Grade-III in

the establishment of District & Sessions, Raipur. Since the petitioner

had sought for grant of permission from the respondent to apply to an

equivalent post, therefore, after due evaluation of the situation, it was

decided not to accord permission / sanction, as it would cause

prejudice to the administrative interest of the respondent

establishment, therefore, his application has rightly been rejected after

evaluating all the attending facts and circumstances, as such, the writ

petition deserves to be dismissed. No rejoinder has been filed.

4. Mr. C. Jayant K. Rao, learned counsel appearing for the petitioner,

would submit that it is the fundamental right of the petitioner to submit

his candidature for another employment and it is the right of a citizen /

petitioner to decide where he would like to practice any particular

profession or get himself engaged in any kind of occupation /

employment and that can be restricted only by law declared which has

a legislative sanction or authority, but it cannot be restricted by an

official circular Annexure R-1 dated 21-10-1980. He would rely upon

 4

the decision of the M.P. High Court in the matter of Manoj Singh Tomar

v. State of M.P. and others1 to buttress his submission.

5. Mr. Amrito Das, learned counsel appearing for the respondent, would

submit that circular dated 21-10-1980 (Annexure R-1) has been

issued by the Department of General Administration which clearly

prescribes under clause 2(2) that Class-III (Clerical) Cadre

Employees’ application shall be forwarded only in a case where the

candidate is seeking permission to apply for a post which is having a

higher pay-scale than the post already held by him. He would further

submit that the petitioner's application has been rejected, as he had

applied on equivalent post of Assistant Grade-III in same pay matrix

with same grade pay of ₹ 1,900/- and also rejected on the ground that

there is shortage of employees and the petitioner cannot be spared.

He would also submit that though the petitioner has fundamental right

guaranteed under Article 19(1)(g) of the Constitution of India to

practice any profession or to carry on any occupation, trade or

business, but that can always be restricted in terms of Article 19(6) of

the Constitution of India and since circular dated 21-10-1980 has been

issued by and in the name of the Governor of the State, it would

amount to a law declared and it can be classified as satisfying the

requirement to place reasonable restriction under Article 19(6) and the

said circular be read as law as being referred to under Article 19(6).

He would rely upon the decisions of the Supreme Court in the matters

of M.R. Balaji and others v. The State of Mysore and others 2 and

Khoday Distilleries Ltd. and others v. State of Karnataka and others 3

1 2013(4) M.P.L.J. 418

2 AIR 1963 SC 649
3 (1995) 1 SCC 574
 5

(paragraph 64) in support of his contention. He would lastly submit

that the writ petition deserves to be dismissed.

6. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

7. The short question for consideration would be, whether the

respondent is justified in rejecting the petitioner’s application refusing

no objection certificate for enabling him to apply for the post of

Assistant Grade-III in another establishment by the impugned order?

8. Admittedly and undisputedly, the petitioner is working on the post of

Assistant Grade-III in the establishment of the respondent herein with

effect from 26-3-2018 in pay matrix Level-4 with grade pay of ₹ 1,900/-

and pursuant to the advertisement dated 24-12-2021, he sought no

objection to apply in the establishment of District & Sessions Judge,

Raipur for the post of Assistant Grade-III in pay matrix Level-4 with

grade pay of ₹ 1,900/-. In order to reject the application, the

respondent has relied upon the State circular dated 21-10-1980 which

states as under: -

मध्य प्रदेश शसनप्र

नसमसन्य प्रशसनप्र ववभसग
----
क्रमममांक 740 /1440/1(3)79 भोपसल, वदप्रसंक 21 अक्टू बर्, 1980

प्रतत,
शसनप्र के नमसत ववभसग,
अध्यक, र्सजसव मंडल, म.प्र. ग्वसललयर्,
नमसत नंभसगसयुक,
नमसत ववभसगसध्यक,
नतसत जजलसध्यक,
मध्यप्रदेश.
=====

ववषयः- र्सज्य कमर चसररर्यो के आवेदप्र पत अन्य ववभसगो मे उच पदो पर्

अग्रेवषत कर्प्रे के नंबंत मे ।ंब

-----X-----
 6

नसमसन्य पुसतक पररर्पत भसग-1 क्रमसंक 11 मे वदये गये वप्रदरशो के

अप्रुनसर् तृतीय शेणी (ललवपक वगर्य) कमर चसररर्यो को तृतीय शेणी के ललवपक
वगर्य पदो पर् नीती भर्ती के ललये आवेदप्र पत देप्रे ने वरजत वकयस गयस है ,
भले ही ऐनस पद उच वेतप्रमसप्र कस क्यो प्र हो ।ंब तृतीय शेणी (अललवपकीय)
वगर के कमर चसररर्यो के आवेदप्र पत र्सज्य के अंतगर त उनी शेणी के उच
वेतप्रमसप्र के पदो मे अग्रेवषत कर्प्रे के ललि कोई अप्रुदेश उक पररर्पत मे प्रही
वदये गि है ।ंब इनललि नसमसन्यतयस उप्रके आवेदप्र भी र्सज्य शसनप्र के तृतीय
शेणी अललवपकीय पदो के ललि अग्रेवषत प्रही वकये जसते है ।ंब

2. उक वप्रदरशो पर् पुप्ररर्वचसर् कर्प्रे के पश्चसत्ा र्सज्य शसनप्र दसर्स अब यह

वप्रणर य ललयस गयस है वकः-

(1) तृतीय शेणी (अललवपक वगर्य) कमर चसररर्यो के आवेदप्र पत र्सज्य

शसनप्र के अन्य ववभसगो मे उनी शेणी के उचतर् वेतप्रमसप्र वसले पदो
पर् नीती भर्ती के ललि अग्रेवषत वकये जस नकते है ।ंब

(2) तृतीय शेणी (ललवपक वगर्य) कमर चसररर्यो के आवेदप्र पत र्सज्य

शसनप्र के अन्य ववभसगो मे उनी शेणी के उचतर् वेतप्रमसप्र वसले पदो
मे नीती भर्ती के ललये अग्रेवषत वकये जस नकते है ।ंब

उपर्ोक नुववतस र्सज्य नेवसअो मे कसयर र्त्ा अस्सयी त्स स्सयी दोप्रो प्रकसर् के
कमर चसररर्यो को नसमसन्य पुसतक पररर्पत भसग 1 क्रमसंक 11 मे वप्ररर्दर् नसमसन्य
जनद्घसंत के अंतगर त ही प्रसप् होगी ।ंब

3/ र्सज्य के बसहर् आवेदप्र पत अग्रेवषत कर्प्रे के नंबंत मे पुसतक पररर्पत

भसग 1 क्रमसंक 11 के वप्रदरश य्सवत र्हेगे ।ंब

मध्य प्रदेश के र्सज्यपसल के प्रसम ने

त्स आदेशसप्रुनसर्.
नही/-
(के०िप्र० शीवससतव)
अवर् नतचव
मध्य प्रदेश शसनप्र
नसमसन्य प्रशसनप्र ववभसग

9. A careful perusal of the aforesaid circular would show that the State

Government has taken a policy decision qua the applications of Class-

III (non-ministerial) employees which can be forwarded for obtaining

employment in other departments of the State Government on

carrying higher pay-scale and secondly, the application of Class-III

(non-ministerial) employees can be forwarded for securing

employment in other departments on carrying higher pay-scale. It

nowhere state and address any kind of permission in any case as

required under clause (2)(7) of the eligibility conditions of the

 7

advertisement (Annexure P-3) which clearly requires that candidates

who are already in Government service shall have to mandatorily

submit no objection from the employer, but this has been said to be a

law declared in terms of Article 19(6) of the Constitution of India

imposing reasonable restriction.

10. At this stage, it would be appropriate to notice Article 19(1)(g) of the

Constitution of India which states as under: -

“Art. 19. Protection of certain rights regarding freedom of

speech, etc.—(1) All citizens shall have the right—

(a) to (f) xxx xxx xxx

(g) to practise any profession, or to carry on any

occupation, trade or business.”

11. By virtue of Article 19(1)(g) of the Constitution of India, all citizens

shall have the right to practise any profession, or to carry on any

occupation, trade or business. The word “occupation” includes an

employment.

12. In the matter of T.M.A. Pai Foundation and others v. State of

Karnataka and others4, the Supreme Court dealt with the word

“occupation” and it has been held by their Lordships of the Supreme

Court as under: -

“25. … “Occupation” would be an activity of a person

undertaken as a means of livelihood or a mission in life.
The above quoted observations in Sodan Singh case
correctly interpret the expression “occupation” in Article
19(1)(g).”

13. As such, it is the fundamental right of the petitioner to decide where he

would like to practice any profession or get himself engaged in any

kind of employment which includes employment in the State also and

that can be curtailed only in terms of Article 19(6) of the Constitution of

4 (2002) 8 SCC 481

 8

India by imposing reasonable restriction by law under Article 19(6).

Article 19(6) of the Constitution of India states as under: -

“(6) Nothing in sub-clause (g) of the said clause shall affect

the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the
interests of the general public, reasonable restrictions on
the exercise of the right conferred by the said sub-clause,
and, in particular nothing in the said sub clause shall affect
the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary

for practising any profession or carrying on any
occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation

owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.”

14. In order to be valid, a limitation under clauses (2) to (6) of Article 19 of

the Constitution of India must comply with the following conditions:—

(a) It must be imposed by law:

(b) Such law must be made by the ‘State’.

(c) Such law must be valid.

(d) The restriction must be proximately related to any of the

grounds specified in the limitation clauses (2) to (6), which may be

relevant to the fundamental right in question.

(e) The restriction imposed by the law must be ‘reasonable’ except

in cases coming under sub-clauses (i) to (ii) of clause (6).

{See Commentary on the Constitution of India by Durga Das Basu (9 th

Edition) (Volume 3) (page 3267).}

15. From the expression ‘the State making any law’ in limitation clause (6)

of Article 19 of the Constitution of India, it is clear that a restriction, in

 9

order to be valid, must have been imposed by a ‘law’, which is made

by the ‘State’.

16. In order to impose reasonable restriction, under clause (6) of Article 19

of the Constitution of India, it must be a law one enacted by the

legislature. The Supreme Court in the matter of State of Bihar and

others v. Project Uchcha Vidya Sikshak Sangh and others 5, held that a

citizen cannot be deprived of the fundamental right under Article 19(1)

(g) of the Constitution of India on the basis of policy decision or

circular and a law for the purpose of Article 19(6) of the Constitution

must be one enacted by the legislature, and observed as under: -

“69. … A citizen cannot be deprived of the said right

except in accordance with law. The requirement of law for
the purpose of clause (6) of Article 19 of the Constitution
can by no stretch of imagination be achieved by issuing a
circular or a policy decision in terms of Article 162 of the
Constitution or otherwise. Such a law, it is trite, must be
one enacted by the legislature.”

17. In Khoday Distilleries Ltd. (supra) (relied upon by learned counsel for

the respondent) also their Lordships of the Supreme Court have

clearly held that the restrictions under Article 19(6) of the Constitution

of India can also be imposed by any subordinate legislation, and

observed in paragraph 64 as under: -

“64. The last contention in these groups of matters is

whether the State can place restrictions and limitations
under Article 19(6) by subordinate legislation. Article 13(3)
(a) of the Constitution states that law includes "any
ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of
law". Clauses (2) to (6) of Article 19 make no distinction
between the law made by the legislature and the
subordinate legislation for the purpose of placing the
restrictions on the exercise of the respective fundamental
rights mentioned in Article 19(1)(a) to (g). We are
concerned in the present case with clause (6) of Article 19.
It will be apparent from the said clause that it only speaks
5 (2006) 2 SCC 545
 10

of "operation of any existing law insofar as it imposes ..."

"from making any law imposing" reasonable restrictions on
the exercise of the rights conferred by Article 19(1)(g).
There is nothing in this provision which makes it imperative
to impose the restrictions in question only by a law enacted
by the legislature. Hence the restrictions in question can
also be imposed by any subordinate legislation so long as
such legislation is not violative of any provisions of the
Constitution. This is apart from the fact that the trade or
business in potable liquor is a trade or business in res
extra commercium and hence can be regulated and
restricted even by executive order provided it is issued by
the Governor of the State. We, therefore, answer the
question accordingly.”

18. The M.P. High Court in Manoj Singh Tomar (supra), in similar fact-

situation, while dealing with circular dated 21-10-1980, has clearly

held that no restriction can be imposed on the Government servant’s

right in making application for employment in another department for

equivalent post, and observed in paragraph 8 as under: -

“8. In my opinion, whether or not G.A.D.’s circular dated

21-10-1980 is applicable, the fact remains that petitioner
has a fundamental right to submit his candidature for
another employment. It is the right of a citizen to decide
where he would like to pactice any particular profession or
get himself engaged any kind of occupation. The said right
can be curtailed only as per Article 19(6). Thus,
reasonable restrictions, which are in consonance with
Article 19(6) can be pressed into service, but no other
condition which is not in consonance with “reasonable
restrictions” can take away the fundamental right of a
citizen to opt for any other profession or occupation. If the
G.A.D.’s order is tested on the aforesaid anvil, it will be
crystal clear that merely because the employment is sought
for in another department for equivalent post, it cannot be
denied and such denial on the aforesaid ground, by no
stretch of imagination can be said to be a reasonable
restriction. The Supreme Court in State of Bihar and
others vs. Project Uchcha Vidya Sikshak Sangh and
others, (2006) 2 SCC 545 opined as under :—

“69. … A citizen cannot be deprived of the said right

except in accordance with law. The requirement of
law for the purpose of clause (6) of Article 19 of the
Constitution can by no stretch of imagination be
 11

achieved by issuing a circular or a policy decision in

terms of Article 162 of the Constitution or otherwise.
Such a law, it is trite, must be one enacted by the
legislature.”

19. The submission of learned counsel for the respondent that circular

dated 21-10-1980 has been issued in exercise of the power under

Article 162 of the Constitution of India after due compliance with

Article 166 of the Constitution of India, therefore, the said circular is a

circular prescribing / laying down conditions attached to the post held

by a government servant, who is already in service, and it is law

declared under Article 19(6) of the Constitution of India, also sans

merit.

20. The Supreme Court in Project Uchcha Vidya Sikshak Sangh’s case

(supra) has clearly held that reasonable restriction under Article 19(6)

of the Constitution of India cannot be imposed by issuing a circular or

a policy decision in terms of Article 162 of the Constitution of India, it

can only be by a law made by the competent legislature. Likewise, in

Khoday Distilleries Ltd. (supra), their Lordships have held that such a

restriction can be imposed also by subordinate legislation.

21. Reverting to the facts of the case in the light of the constitutional

provision and principles of law laid down by their Lordships of the

Supreme Court in Project Uchcha Vidya Sikshak Sangh’s case (supra)

and Khoday Distilleries Ltd. (supra), it cannot be held that circular

dated 21-10-1980 is a “law” within the meaning of Article 19(6) of the

Constitution of India to have a valid and reasonable restriction on the

fundamental right guaranteed to the citizens / petitioner under Article

19(1)(g) of the Constitution of India in the instant case to obtain

employment in other departments of the Government. Consequently,

the impugned memo dated 31-12-2021 (Annexure P-1) is hereby set

 12

aside. The respondent is directed to consider and grant no objection

certificate in favour of the petitioner forthwith. Since the petitioner had

already been permitted to participate in the selection process by

interim order dated 25-1-2022, the interim order is made absolute.

22. The writ petition is allowed to the extent sketched herein-above

leaving the parties to bear their own cost(s).

Sd/-
(Sanjay K. Agrawal)
Judge
Soma
 13

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (S) No.294 of 2022

Jai Narayan Verma

Versus

District & Sessions Judge, Kabirdham

Head Note

The petitioner / Government servant is eligible for no objection certificate

from the present employer to apply for Government post in absence of valid

law under Article 19(6) of the Constitution of India.

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