Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.20096 of 2016 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Subala Kumar Nayak Aged about 36 years Son of Sankeswar Nayak At/P.O.: Sadeipalli P.S.: Sadar Bolangir District: Bolangir. -VERSUS- … Petitioner 1. Commandant-General of Home Guards, Odisha Buxibazar, Cuttack District: Cuttack. 2. Superintendent of Police-cum-Commandant Home Guards, Bolangir At/P.O./P.S.: Bolangir … Opposite parties Counsel appeared for the parties: For the Petitioner : M/s. Manoja Kumar Khuntia, Gyana Ranjan Sethi, J.K. Digal, Ms. Babita Kumari Pattnaik, Advocates For the Opposite parties : Mr. Dayanidhi Lenka, Additional Government Advocate For the Interveners : M/s. Bibhuti Bhusan Swain and W.P.(C) No.20096 of 2016 Page 1 of 53 Sunil Kumar Swain, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 15.04.2025 :: Date of Judgment : 17.04.2025 J UDGMENT The petitioner, a selected candidate in pursuance of Advertisement dated 12.04.2016, questions propriety of decision taken by the Commandant-General-Inspector General of Police, Fire Services, Home Guards and Civil Defence, Odisha), Cuttack in refusing to accord approval to the proceeding of Appointment Board/Selection Board/Enrolment Board for appointment of Home Guards (selected candidates) as sought for by the Commandant of Home Guards, Bolangir, by way of the instant writ petition invoking provisions of Articles 226 and 227 of the Constitution of India. Facts: 2. The opposite party No.2 issued an Advertisement dated 12.04.2016 inviting application from eligible candidates for appointment of Home Guards against eighty one posts in Bolangir district. Twenty three out of eighty one posts are reserved for women candidates. The eligibility criteria provided for: W.P.(C) No.20096 of 2016 Page 2 of 53 i. candidate must have attained the age of 20 years as on 01.01.2016; ii. candidate must have passed at least Lower Primary Examination in Odia language; iii. candidate must be physically fit. 2.1. The petitioner applied for appointment/enrolment in the post of Home Guard in response to said Advertisement. The Selection Board/Appointment Board/Enrolment Board (for convenience, “Board”) constituted under the Chairmanship of Commandant, Home Guards, Bolangir, upon medical test being conducted with respect to candidates and verification of other conditions of eligibility, selected eight one candidates out of two thousand one hundred and twenty candidates who applied for enrolment as Home Guard. The name of the petitioner finds place at serial No.25 of the said list of successful candidates. 2.2. After completion of the selection process, for the purpose of enrolment/appointment, the proceeding of Enrolment Board was sent to the Commandant-General of Home Guards for approval on 13.06.2016. Nonetheless, the same has been refused on the ground that “prior approval was not taken” from the Directorate General. W.P.(C) No.20096 of 2016 Page 3 of 53 2.3. On 26.10.2016 the Commandant of Home Guards issued further Advertisement dated 26.10.2016 inviting applications for enrolment of Home Guards against sixty seven posts. 2.4. Hence, this writ petition has been filed invoking provisions of Article 226/227 of the Constitution of India. Counter affidavit of the opposite parties: 3. The Commandant, Home Guards, Bolangir by way of advertisement dated 12.04.2016 invited applications from the candidates without prior approval of the Commandant-General, Home Guards, Odisha as required under Section 3 of the Odisha Home Guards Act, 1961 (for brevity, “HG Act”). 3.1. After obtaining prior approval from the State Home Guards Headquarters, Odisha, Cuttack vide Letter No.3852/HGs, dated 07.10.2016, Advertisement dated 26.10.2016 was published for enrolment of Home Guards against sixty seven vacancies for which selection process was undertaken during 18.11.2016 to 21.11.2016. 3.2. Under such circumstances, the latter Advertisement, being in consonance with sine qua non requirement envisaged under Section 3 of the HG Act read with W.P.(C) No.20096 of 2016 Page 4 of 53 Instruction contained in Circular dated 03.07.2014, no fault can be attributed to such Advertisement, pursuant which selection process has already been completed. Hearing: 4. This Court on 06.12.2016 passed the following order: “W.P.(C) No.20096 of 2016
Legal Reasoning
Learned counsel for the petitioner is directed to serve two extra sets of the brief on learned Additional Government Advocate for the State, who shall appear on behalf of opposite party Nos.1 and 2 and take instruction in the matter. List this matter on 10.01.2017. Counter affidavit, if any, be filed in the meantime. *** Misc. Case No.18517 of 2016
Decision
It is directed that the result published pursuant to Order dated 30.09.2016, under Annexure-4, shall be subject to result of the writ petition. Misc. Case is disposed of. ***” 4.1. Sri Dayanidhi Lenka, learned Additional Government Advocate pressed into service I.A. No.1852 of 2025 filed by the opposite parties seeking to vacate aforesaid Order dated 06.12.2016. W.P.(C) No.20096 of 2016 Page 5 of 53 4.2. When the matter is taken up for consideration of said interlocutory application filed at the instance of opposite parties, Sri Manoja Kumar Khuntia, learned counsel appearing for the petitioner submitted that as the pleadings are completed and exchanged between the counsel for respective parties, the writ petition, being pending since 2016, can be disposed of on short point, i.e., whether prior approval of the Commandant-General of Home Guards was required to be taken before appointment by the Commandant of Home Guards or such approval was required to be taken by the Commandant prior to initiation of enrolment process for appointment of Home Guards. 4.3. Sri Bibhuti Bhusan Swain, learned Advocate appearing for interveners by way of I.A. No.6058 of 2025, would submit that the intervention petition of Sanjib Kumar Maharana, Lokeswar Mishra, Lalit Kumar Rout and Jyoti Ranjan Naik, successful candidates whose names found place in the select list in connection with the Advertisement dated 12.04.2016, could not be issued with the appointment orders in view of the fact that the Commandant-General did not accord approval. He has, therefore, no objection for disposal of the writ petition at this stage and would support the arguments advanced by Sri Manoja Kumar Khuntia, learned counsel for the petitioner. W.P.(C) No.20096 of 2016 Page 6 of 53 4.4. Hence, on the consent of counsel for the respective parties, this matter was taken up for final hearing on 15.04.2025. 4.5. Heard Sri Manoja Kumar Khuntia and Ms. Babita Kumar Pattnaik, learned Advocates for the petitioner; Sri Bibhuti Bhusan Swain, learned Advocate for the intervener-petitioners and Sri Dayanidhi Lenka, learned Additional Government Advocate representing the opposite parties. 4.6. On conclusion of hearing, the matter stood reserved for preparation and pronouncement of Judgment/Order. Rival contentions and submissions: 5. Sri Manoja Kumar Khuntia, learned Advocate submitted that there is no requirement under the HG Act read with the Odisha Home Guards Rules, 1962 (“HG Rules”, abbreviated) for obtaining prior approval to initiate recruitment/enrolment process, but it is the requirement for seeking approval of the Commandant- General by the Commandant of Home Guards for the purpose of appointment. 5.1. It is, thus, argued by Sri Manoja Kumar Khuntia, learned Advocate that the Board having initiated enrolment process for appointment of Home Guards by way of Advertisement dated 12.04.2016 and proceeded W.P.(C) No.20096 of 2016 Page 7 of 53 to select eighty one candidates as per vacancy position, there was no illegality in such process. In order to comply with the terms of Section 3 of the HG Act read with Rule 4 of the HG Rules, the Commandant of Home Guards sought for approval for the purpose of “appointment”. 5.2. However, the Commandant-General of Home Guards on misreading and erroneous interpretation of the statutory provisions, refused to accord approval to the selection made by the duly constituted Board. 6. Per contra, Sri Dayanidhi Lenka, learned Additional Government Advocate vehemently contended that “prior approval” is concomitant factor contemplated under Section 3 of the HG Act and such mandatory requirement being not satisfied by the Commandant, the selection proceeding of the Board suffers infirmity. In absence of “prior approval” of the Commandant-General entire proceeding of Board stands vitiated, being vulnerable. 6.1. The Commandant of Home Guards is not empowered to issue advertisement to fill up posts of Home Guards without “prior approval” of the Commandant-General of Home Guards in view of Instructions contained in Circular No.N-1-2012/6714/HGs, dated 03.07.2014, which clearly impressed upon all concerned for W.P.(C) No.20096 of 2016 Page 8 of 53 obtaining prior approval. It is stipulated therein that absence of prior approval would render the appointment/reappointment void ab initio. 6.2. Therefore, he prayed for dismissal of the writ petition. Discussions and analysis: 7. Relevant provisions of the Odisha Home Guards Act, 1961, lay down as follows: “An Act to provide for the constitution of the Home Guards in the State of Odisha it is expedient WHEREAS Organisation for use purposes in the State of Odisha; to provide a volunteer in emergencies and for other *** 2. Constitution of Home Guards and appointment of Commandant-General and Commandant.— (1) The State Government shall constitute for the areas notified under sub-section (3) of Section 1 a volunteer body called the Home Guards, the members of which shall discharge such functions and duties in relation to the protection of persons, the security of property and public safety and for such other functions as may be assigned to them in accordance with the rules made provisions of thereunder. this Act and the (2) The State Government shall appoint a Commandant- General of the Home Guards in whom shall vest general supervision and control of the Home Guards W.P.(C) No.20096 of 2016 Page 9 of 53 in the State and may also appoint a Deputy Commandant-General to whom the Commandant- General may delegate such of his powers as he may consider necessary for supervision, control and training of the Home Guards. (3) The State Government shall also appoint a Commandant for the Home Guards in each district. 3. Appointment of Members.— (1) Subject to the approval of the Commandant- General, the Commandant may appoint as members of the Home Guards with in his jurisdiction such number of persons, who are fit and willing to serve, as may from time to time be determined by the State Government and may appoint any such member to any office of Command in the Home Guards. (2) Notwithstanding anything contained in sub-section (1) the Commandant-General may appoint any such member to any such office as aforesaid under his control. *** 10. Rules.— (1) The State Government may make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following 5 matters, namely: W.P.(C) No.20096 of 2016 Page 10 of 53 (a) (b) (c) the exercise by any officer of the Home Guards of the powers conferred by Section 4 on the Commandant and Commandant General; the exercise of control by officers of the Police Force over members of the Home Guards ,when acting in aid of the Police Force; functions the Organization, appointment, conditions of service, arms, accoutrements ,and clothing of members of the Home Guards and the manner in which they may be called out for service; and discipline, (d) any other matter required, or expressly or to be this Act impliedly authorized, by prescribed by rules.” 8. Rules so far as relevant for the present purpose prescribed under the Odisha Home Guards Rules, 1962 read thus: “2. Definitions.— In these rules unless the context otherwise requires: (i) (ii) ‘Act’ means the Odisha Home Guards Act, 1961; ‘Deputy Commandant- ‘Commandant-General’, ‘Commandant’ respectively mean General’ and Commandant-General, Commandant- General and Commandant of Home Guards appointed under Section 2; Deputy (iii) ‘Form’ means a form appended to these rules; W.P.(C) No.20096 of 2016 Page 11 of 53 (iv) (v) (vi) ‘Home Guards’ means the Home Guards constituted under Section 2; ‘Member of the Home Guards’ means a member appointed under Section 3; ‘Section’ means a section of the Act. 3. Appointment of members of Home Guards.— No person shall be appointed as a member of the Home Guards: (a) Unless he has attained the age of twenty and has not completed the age of sixty years; (b) Unless he has passed at least the lower primary examination in any language; and (c) Unless he has been medically examined and is in the opinion of the Commandant physically fit: Provided that the Commandant-General or the Deputy Commandant-General, if so authorized by the Commandant-General, may in suitable cases relax the condition prescribed in Clauses (a) and (b). 4. Application for appointment.— A person desiring to be appointed as member of the Home Guards, shall make an application in Form ‘A’. *** 8. Term of office.— The term of office of a member of the Home Guards shall be three years: W.P.(C) No.20096 of 2016 Page 12 of 53 Provided that if any such member is found to be medically unfit to continue as a member of Home Guards his appointment may be terminated before the expiry of the aforesaid term of office: Provided further that a person appointed as a member of the Home Guards shall be eligible for re- appointment. 9. Limit of age for a member of the Home Guards.— No member of the Home Guards shall continue to be such member after completion of the age of 60 years: Provided that the Commandant-General, or the Commandant may relax the age-limit in suitable cases. *** 13. Powers of the Commandant.— (1) The Commandant shall exercise general supervision and control over the working of all the units and co- ordinate the work of the Home Guards within the district under his jurisdiction and shall be directly responsible to the Commandant-General for the efficient working, discipline, administration and training of the member of Home Guards. (2) Subject to the supervision and control of the Commandant, any officer of the Home Guards authorized by the Commandant in this behalf may exercise the powers conferred on the Commandant in such circumstances as the Commandant may specify. ***” W.P.(C) No.20096 of 2016 Page 13 of 53 9. Harmonious reading of aforesaid provisions would lead to show that in terms of Section 3 of the HG Act members of Home Guards, who are fit and willing to serve, may be appointed by the Commandant, subject to the approval of the Commandant-General. The words “who are fit and willing to serve” makes it abundantly clear that after a candidate is found fit and willing to serve by the Commandant, the approval of the Commandant-General would be necessary for “appointment”. 9.1. Further reading of Rule 3 of the HG Rules gives one to understand that certain conditions are required to be fulfilled for the purpose of appointment as a member of the Home Guards. The Commandant-General or the Deputy Commandant-General, if so authorized by the Commandant-General, is empowered in suitable cases to relax the condition(s) prescribed. 9.2. It is, therefore, unequivocal that it is for the purpose of “appointment”, not for the initiation of process of selection/enrolment prior approval is a sine qua non condition. 9.3. Such view of this Court gets fortified by the following instructions issued by the Commandant-General of Home Guards vide Annexure-A/2 of the counter affidavit W.P.(C) No.20096 of 2016 Page 14 of 53 as relied upon by the learned Additional Government Advocate: “RM/FAX To : All Commandant, Home Guards Info : All Range IGPs/DIGs of Police From : IGP, FS, HGs and CD, Odisha, Cuttack No. N-1-2012/6714/HGs, dated 03.07.2014 U/C Ref.: Appointment/Reappointment of Home Guards in District Home Guards Organisation. As prescribed in Section 3(1) of the Odisha Home Guards Act, 1961, the Commandants shall appoint the members of Home Guards within his jurisdiction subject to prior approval of the Commandant-General, Home Guards. As such, if there are any appointment/reappointment of Home Guards without prior approval of the Commandant- General, those shall be treated as void ab initio. Necessary action in this matter may please be taken accordingly.” 9.4. Glance at said Circular, it manifests that prior approval of Commandant-General is necessary for appointment of “members of Home Guards” [means a member appointed under Section 3 as defined under Rule 2(v) of the Home Guards Rules] by the Commandant. 9.5. Thus, there being no inhibition for proceeding with the selection of the candidates “for” appointment of W.P.(C) No.20096 of 2016 Page 15 of 53 members of Home Guards by the Board chaired by the Commandant. However, conjoint reading of the provisions of Section 3 of the HG Act read with the HG Rules as extracted hitherto coupled with the Circular demonstrates that emphasis is on the word “appoint”/“appointment”, but not the process of selection of members of Home Guards for appointment. 10. Section 3 of the HG Act which is pivot for argument that the selection process being conducted within the authority of Commandant, without assigning any plausible reason the Commandant-General should not have refused to accord approval. 10.1. It does, therefore, require examination of purport of “subject to” in the expression “Subject to the approval of the Commandant-General, the Commandant may appoint as members of the Home Guards” as employed in said Section 3. 10.2. Full Bench of this Court in the case of Srinibas Jena Vrs. Janardan Jena, AIR 1981 Ori 1 = 50 (1980) CLT 337 interpreted the effect of “subject to” in the following manner: “No doubt, the opening paragraph of Section 4 says that the ensuing consequences are till the close of the consolidation operation, but it also says that the ensuing consequences are “subject to the provisions of this Act”. The words “subject to” mean “conditional upon”. W.P.(C) No.20096 of 2016 Page 16 of 53 These words should be given a reasonable interpretation, an interpretation which would carry out the intention of the legislature.” 10.3. In Ashok Leyland Ltd. Vrs. State of Tamil Nadu, (2004) 3 SCC 1 the Hon’ble Supreme Court noticed the expression ‘subject to’ as defined in Black’s Law Dictionary, Fifth Edition, page 1278, which is as follows: “Liable, subordinate, subservient, inferior, obedient to; that; provided, governed or affected by; provided answerable for”. 10.4. In Surinder Singh Vrs. Central Government, (1986) 4 SCC 667, it has been observed as follows: “6. The High Court has held that the disposal of property forming part of the compensation pool was “subject” to the rules framed as contemplated by Sections 8 and 40 of the Act and since no rules had been framed by the Central Government with regard to the disposal of the urban agricultural property forming part of the compensation pool, the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction- sale. Unless rules were framed as contemplated by the Act, according to the High Court the Central Government had no authority in law to issue executive directions for the sale and disposal of urban agricultural property. This view was taken, placing reliance on an earlier decision of a Division Bench of that court in Bishan Singh Vrs. Central Government, (1961) 63 Punj LR 75. The Division Bench in Bishan case, (1961) 63 Punj LR 75 took the W.P.(C) No.20096 of 2016 Page 17 of 53 view that since the disposal of the compensation pool property was subject to the rules that may be made, and as no rules had been framed, the Central Government had no authority in law to issue administrative directions providing for the transfer of the urban agricultural land by auction-sale. In our opinion the view taken by the High Court is incorrect. Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression “subject to the rules” only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute. In T. Cajee Vrs. U. Jormanik Siem, AIR 1961 SC 276 = (1961) 1 SCR 750, the Supreme Court reversed the order of the High Court whereby the order of District Council removing Siem, was quashed by the High Court on the ground that the District Council had not framed any rules for the exercise of its powers as contemplated by para 3(1)(g) of 6th Schedule to the Constitution. The High Court had taken the view that until a law as contemplated by para 3(1)(g) was made there could be no question of exercise of power W.P.(C) No.20096 of 2016 Page 18 of 53 including the district of appointment of a Chief or Siem or removal either. Setting aside the order of the High Court, a Constitution Bench of this Court held that the administration of the appointment or removal of Siem could not come to a stop till regulations under para 3(1)(g) were framed. The view taken by the High Court that there could be no appointment or removal by the District Council without framing of the regulation was set aside. Similar view was taken by this Court in B.N. Nagarajan Vrs. State of Mysore, AIR 1966 SC 1942 = (1966) 3 SCR 682 and Mysore State Road Transport Corpn. Vrs. Gopinath, AIR 1968 SC 464 = (1968) 1 SCR 767. In U.P. State Electricity Board Vrs. City Board, Mussoorie, (1985) 2 SCC 16 = AIR 1985 SC 883 = (1985) 2 SCR 815 validity of fixation of Grid Tarrif was under challenge. Section 46 of the Electricity (Supply) Act, 1948 provide that tariff known as the Grid Tariff shall be fixed from time to time in accordance with any regulations made in that behalf. Section 79 of the Act conferred power on the Electricity Board to frame regulations. The contention that Grid Tariff as contemplated by Section 46 of the Electricity (Supply) Act could not be fixed in the absence of any regulations laying down for fixation of tariff, and that the notification fixing tariff in the absence of such Regulations was illegal, was rejected and this Court observed: (SCC pp. 20- 21, para 7) ‘It is true that Section 79(h) of the Act authorises the Electricity Board to make regulations laying down the principles governing the fixing of Grid Tariffs. But Section 46(1) of the Act does not say that no Grid Tariff can be fixed until such regulations are made. W.P.(C) No.20096 of 2016 Page 19 of 53 It only provides that the Grid Tariff shall be in accordance with any regulations made is this behalf. That means that if there were any regulations, the Grid Tariff should be fixed in accordance with such regulations and nothing more. We are of the view that the framing of regulations under Section 79(h) of the Act cannot be a condition precedent for fixing the Grid Tariff.’ The pool property. 7. As noted earlier Sections 8 and 20 of the Act provides for payment of compensation to displaced persons in any of the forms as specified including by sale to the displaced persons of any property from the compensation pool and setting off the purchase money against the compensation payable to him. Section 16 confers power on the Central Government to take measures which it may consider necessary for the custody, management and disposal of the compensation Central Government had therefore ample powers to take steps for disposal of pool property by auction-sale and for that purpose it had authority to issue administrative directions. Section 40(2)(j) provides for framing of rules prescribing procedure for the transfer of property out of the compensation pool and the adjustment of the value of the property so transferred against the amount of compensation. Neither Sections 8, 16, 20 nor Section 40 lay down that payment of compensation by sale of the pool property to a displaced person shall not be done unless rules are framed. These provisions confer power on the Central Government and the authorities constituted under the Act power to pay compensation to displaced persons by sale, or allotment of pool property to them in accordance with W.P.(C) No.20096 of 2016 Page 20 of 53 rules, if any. Framing of rules regulating the mode or manner of disposal of urban agricultural property by sale to a displaced person is not a condition precedent for the exercise of power by the authorities concerned under Sections 8, 16 and 20 of the Act. If the legislative intent was that until and unless rules were framed power conferred on the authority under Sections 8, 16 and 20 could not be exercised, that intent could have been made clear by using the expression “except in accordance with the rules framed” a displaced person shall not be paid compensation by sale of pool property. In the absence of any such provision the framing of rules, could not be a condition precedent for the exercise of power.’ ***” 10.5. The Hon’ble Supreme Court of India in Jantia Hill Truck Owners Assn. Vrs. Shailang Area Coal Dealer & Truck Owner Assn., (2009) 8 SCC 4921 was pleased to make following authoritative pronouncement: “The provisions of the Act mandate that the unladen weight and laden weight must be determined. Indisputably, weighing devices had to be provided for the said purpose. It is true that for the said purpose rules may have to be framed. It is, however, a well- settled principle of law that even in a case where the statute provides for certain things to be done, 1