Orissa High Court
Subala Kumar Nayak vs Commandant-General Of Home Guards on 17 April, 2025
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. ... Petitioner
-VERSUS-
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
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:
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.
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
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:
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.
***
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.
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.
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
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
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
WHEREAS it is expedient to provide a volunteer
Organisation for use in emergencies and for other
purposes in the State of Odisha;
***
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
provisions of this Act and the rules made
thereunder.
(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
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:
(a) the exercise by any officer of the Home Guards
of the powers conferred by Section 4 on the
Commandant and Commandant General;
(b) the exercise of control by officers of the Police
Force over members of the Home Guards ,when
acting in aid of the Police Force;
(c) the Organization, appointment, conditions of
service, functions discipline, arms,
accoutrements ,and clothing of members of the
Home Guards and the manner in which they
may be called out for service; and
(d) any other matter required, or expressly or
impliedly authorized, by this Act to be
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) 'Act' means the Odisha Home Guards Act, 1961;
(ii) 'Commandant-General', 'Deputy Commandant-
General' and 'Commandant' respectively mean
Commandant-General, Deputy Commandant-
General and Commandant of Home Guards
appointed under Section 2;
(iii) 'Form' means a form appended to these rules;
(iv) 'Home Guards' means the Home Guards constituted
under Section 2;
(v) 'Member of the Home Guards' means a member
appointed under Section 3;
(vi) '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:
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.
***"
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
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
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".
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;
governed or affected by; provided that; 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
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
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 district including 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.
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.'
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 pool property. The 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
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 492 1 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 The effect of "subject to" as laid down in Surinder Singh Vrs. Central
Government, (1986) 4 SCC 667 and Jantia Hill Truck Owners Assn. Vrs. Shailang
Area Coal Dealer & Truck Owner Assn., (2009) 8 SCC 492 has been referred to in
State of M.P. Vrs. Rakesh Sethi, (2020) 7 SCR 734.
subject to rules, any action taken without framing
the rules would not render any (sic. that) action
invalid. If a statute is workable even without
framing of the rules, the same has to be given effect
to. The law itself except in certain situations does
not envisage vacuum. Non-compliance with the
provisions relating to "laden weight" and "unladen
weight" being penal in nature must be held to be
imperative in character."
10.6. In the light of above principle as laid down by the
Hon'ble Supreme Court of India, if provisions of Section
3 of the HG Act is scrutinised, necessary corollary would
be that the power of appointment of members of Home
Guards is vested with the Commandant, but the same is
conditional upon approval of the Commandant-General.
No pre-fix like the word "prior" does appear before the
term "approval" finds place. In absence of requirement
under Section 3 for obtaining "prior approval" of
Commandant-General for the purpose of constitution of
Board and selection of members of Home Guards by it,
entire proceeding cannot be said to be "irregular" as held
by the Commandant-General vide Letter dated
09.09.2016 (Annexure-3). Reading of provisions of
Section 3 of the HG Act read with Rule 4 of the HG Rules
makes it clear that necessitous of approval of the
Commandant-General would arise at the stage of
making "appointment" of members of the Home Guards
by the Commandant, but not for the purpose of selection
process/enrolment process.
11. This now takes this Court to examine legal perspective of
the term "approval", as it is strenuously argued by Sri
Dayanidhi Lenka, learned Additional Government
Advocate, that for sole ground reflected in the Letter
dated 09.09.2016 of the Commandant-General that
"prior approval was not taken from this Directorate
General and the Appointment Board of Home Guards
was done in an irregular manner" would vitiate selection
process. Stemming on instruction contained in the
Circular dated 03.07.2014 of the Commandant-General
addressed to all Commandants vide Annexure-A/2
enclosed to the counter affidavit, the learned Additional
Government Advocate insisted to refuse to consider
favourably the contention of Sri Manoja Kumar
Khuntia, learned Advocate for the petitioner that such
Circular, being not statutory in nature, the same being
directory and not in consonance with the provisions of
Section 3 of the HG Act, cannot be basis for refusal for
according approval. It is also urged by the learned
counsel for the petitioner that under misconceived
notion of necessity for "prior approval" even for selection
of members of the Home Guards, the Commandant-
General has observed that the Appointment Board of
Home Guards was formed "in an irregular manner".
Such irrational and illogical appreciation of provision of
Section 3 of the HG Act would obliterate the decision
communicated in the Letter dated 09.09.2016.
11.1. Having noticed the effect and impact of the expression
"subject to" as discussed above, the exposition of the
term "approval" needs discussion.
11.2. Section 3 of the HG Act and Rule 3 of the HG Rules
emphasise the word "appoint". There is no express
prohibition spelt out therein with respect to constitution
of the Selection Board/Appointment Board/Enrolment
Board, by whatever name called. It is also not restricted
by way of express provision with respect to conduct of
examination of the persons for selection of members of
Home Guards for appointment. It is manifest from Rule
3 of the HG Rules, that prior to "appointment" as a
member of the Home Guards a candidate must have
attained the age of twenty years and has not completed
the age of sixty years; he should have passed at least the
Lower Primary Examination in any language (Odia
language as per Advertisement); and such candidate has
been medically examined and is in the opinion of the
Commandant physically fit. Section 3 empowers the
Commandant to appoint members of Home Guards, but
subject to approval of the Commandant-General. Thus,
the statutory requirement is unambiguous that prior to
appointment under Section 3, a candidate must have
been found eligible in terms of conditions stipulated in
Rule 3, which is the domain of the Commandant.
However, at the time of "appointment" the necessity for
according approval by the Commandant-General arises.
11.3. Circular dated 03.07.2014 issued by the Commandant-
General makes it very clear that "the Commandant shall
appoint the members of Home Guards within his
jurisdiction subject to prior approval of the
Commandant-General". Here also the emphasis is on the
word "appoint". The word "approval" comprehends also
post-facto approval. Therefore, restrictive meaning
attached by way of instruction contained in the Circular
for "prior" approval is to be eschewed.
11.4. Section 3 of the HG Act only employs the word
"approval", which term is contradistinguished from the
word "permission". There is nothing in the language of
the said provision to suggest that such "approval" is
required to be construed as "prior approval". This Court
takes note of certain decisions to have benefit of
understanding the true purport of "approval".
11.5. In Union of India Vrs. Bhim Sen Walaiti Ram, (1969) 3
SCC 146 a Constitution Bench of the Hon'ble Supreme
Court of India considered provision requiring approval
by the authority concerned and held,
"On behalf of the appellants it was contended by Dr
Sayed Muhammed that the respondent was under a legal
obligation to pay one-sixth of the annual fee within seven
days of the auction under clause 21 of Rule 5.34 and it
was due to his default that a re-sale of the excise shop
was ordered. Under clause 22 of Rule 5.34 the
respondent was liable for the deficiency in price and all
expenses of such re-sale which was caused by his
default. We are unable to accept this argument. The first
portion of clause 21 requires the "person to whom the
shop has been sold" to deposit one-sixth of the total
annual fee within seven days. But the sale is deemed to
have been made in favour of the highest bidder only on
the completion of the formalities before the conclusion of
the sale. Clause 16 of Rule 5.34 states that "all sales are
open to revision by the Chief Commissioner". Under
clause 18, the Collector has to make a report to the Chief
Commissioner where in his discretion he is accepting a
lower bid. Clause 33 of the Conditions, Ex. D-28, states
that "all final bids will be made subject to the
confirmation by the Chief Commissioner who may reject
any bid without assigning any reasons". It is, therefore,
clear that the contract of sale was not complete till the bid
was confirmed by the Chief Commissioner and till such
confirmation the person whose bid has been provisionally
accepted is entitled to withdraw his bid. When the bid is
so withdrawn before the confirmation of the Chief
Commissioner the bidder will not be liable for damages on
account of any breach of contract or for the shortfall on
the re-sale. An acceptance of an offer may be either
absolute or conditional. If the acceptance is
conditional the offer can be withdrawn at any
moment until absolute acceptance has taken place.
This view is borne out by the decision of the Court of
Appeal in Hussey Vrs. Hornepayne, [L.R.] 4 App. Cas. 311
= (1878) 8 Ch D 670 at 676. In that case V offered land to
P and P accepted "subject to the title being approved by
my solicitors". V later refused to go on with the contract
and the Court of Appeal held that the acceptance was
conditional and there was no binding contract and that V
could withdraw at any time until P's solicitors had
approved the title. Jossel M.R., observed at p. 626 of the
report as follows:
'The offer made to the plaintiff of the estate at that price
was a simple offer containing no reference whatever to
title. The alleged acceptance was an acceptance of the
offer, so far as price was concerned, subject to the title
being approved by our solicitors'. There was no
acceptance of that additional term, and the only question
which we are called upon to decide is, whether that
additional term so expressed amounts in law to an
additional terms or whether it amounts, as was very
fairly admitted by the counsel for the respondents, to
nothing at all, that is, whether it merely expresses what
the law would otherwise have implied. The expression
'subject to the title being approved by our solicitors'
appears to me to be plainly an additional term. The
law does not give a right to the purchaser to say
that the title shall be approved by any one, either by
his solicitor or his conveyancing counsel, or any one
else. All that he is entitled to require is what is called a
marketable title, or, as it is sometimes called, a good title.
Therefore, when he puts in 'subject to the title being
approved by our solicitors', he must be taken to
mean what he says, that is, to make a condition
that solicitors of his own selection shall approve of
the title.'
It was submitted on behalf of the appellant that the
phrase "person to whom a shop has been sold" in clause
21 of Rule 5.34 means a "person whose bid has been
provisionally accepted". It is not possible to accept this
argument. As we have already shown the first part of
clause 21 deals with a completed sale and the second
part deals with a situation where the auction is conducted
by an officer lower in rank than the Collector. In the latter
case the rule makes it clear that if any person whose bid
has been accepted by the officer presiding at the auction
fails to make the deposit of one-sixth of the annual fee, or
if he refuses to accept the licence, the Collector may re-sell
the licence, either by public auction or by private contract
and any deficiency in price and all expenses of such re-
sale shall be recoverable from the defaulting bidder. In
the present case the first part of clause 21 applies. It is
not disputed that the Chief Commissioner has
disapproved the bid offered by the respondent. If the
Chief Commissioner had granted sanction under clause
33 of Ex. D-23 the auction sale in favour of the respondent
would have been a completed transaction and he would
have been liable for any shortfall on the re-sale. As the
essential pre-requisites of a completed sale are missing in
this case there is no liability imposed on the respondent
for payment of the deficiency in the price."
11.6. In Vijayadevi Navalkishore Bhartia Vrs. Land Acquisition
Officer, (2003) 5 SCC 83 it has been observed that,
"From the scheme of the Act, it is seen that the power of
inquiry under Section 11 vests with the Collector who has
to issue notice to the interested persons and hear the
interested persons in the said inquiry. He also has to
determine the measurements of the land in question and
on the basis of the material on record decide the
compensation which in his opinion should be allowed for
the land and if need be, he can also apportion the said
compensation amongst the interested persons. The nature
of inquiry which statutorily requires the interested parties
of being heard and taking a decision based on relevant
factors by the Collector shows that the inquiry
contemplated under Section 11 is quasi-judicial in nature,
and the said satisfaction as to the compensation payable
should be based on the opinion of the Collector and not
that of any other person. Section 11 under the Act has not
provided an appeal to any other authority as against the
opinion formed by the Collector in the process of inquiry
conducted by him. What is provided under the proviso
to Section 11(1) is that the proposed award made by
the Collector must have the approval of the
appropriate Government or such officer as the
appropriate Government may authorise in that
behalf. In our opinion, this power of granting or not
granting previous approval cannot be equated with
an appellate power.
Black's Law Dictionary, 6th Edn., defines "approval" to
mean an act of confirming, ratifying, assenting,
sanctioning or consenting to some act or thing done by
another. In the context of an administrative act, the
word "approval" in our opinion, does not mean
anything more than either confirming, ratifying,
assenting, sanctioning or consenting. It will be
doing violence to the scheme of the Act if we have to
construe and accept the argument of the learned
counsel for the respondents that the word approval
found in the proviso to Section 11(1) of the Act
under the scheme of the Act amounts to an
appellate power. On the contrary, we are of the
opinion that this is only an administrative power
which limits the jurisdiction of the authority to
apply its mind to see whether the proposed award is
acceptable to the Government or not. In that process
for the purpose of forming an opinion to approve or
not to approve the proposed award the
Commissioner may satisfy himself as to the
material relied upon by the Collector but he cannot
reverse the finding as if he is an Appellate
Authority for the purpose of remanding the matter
to the Collector as can be done by an Appellate
Authority; much less can the Commissioner
exercising the said power of prior approval give
directions to the statutory authority in what
manner he should accept/appreciate the material
on record in regard to the compensation payable. If
such a power of issuing direction to the Collector by the
Commissioner under the provision of law referred to
hereinabove is to be accepted then it would mean that the
Commissioner is empowered to exercise the said power to
substitute his opinion to that of the Collector's opinion for
the purpose of fixing the compensation, which in our view
is opposed to the language of Section 11 of the Act.
Therefore, we are of the opinion that the Act has not
conferred an appellate jurisdiction on the Commissioner
under Section 15(1) proviso of the Act. This conclusion of
ours is further supported by the scheme of the Act and
Section 15-A of the Act which is also introduced in the Act
simultaneously with the proviso to Section 11(1) under Act
68 of 1984. By this amendment, we notice that the Act
has given a power akin to the appellate power to the State
Government to call for any records or proceedings of the
Collector before any award is made for the purpose of
satisfying itself as to the legality or propriety of any
finding or order passed or as to the irregularity of such
proceedings and to pass such other order or issue such
direction in relation thereto as it may think fit. Therefore it
is not as if the acquiring authority, namely, the
appropriate Government even if aggrieved by the fixation
of compensation by the Collector has no remedy. It can
very well exercise the power under Section 15-A and pass
such orders as it thinks fit, of course, after affording an
opportunity to such person who is likely to be prejudicially
affected by such order of the appropriate Government,
therefore, it is clear that the statute when it intended to
give appellate or revisional power against the finding of
the Collector in the fixation of compensation it has
provided such power separately in Section 15-A of the
Act. Therefore, in our opinion, if the Commissioner while
considering the proposed award of the Collector under the
proviso to Section 11(1) of the Act to grant or not to grant
approval thinks that the order of the Collector cannot be
approved, he can at the most on the administrative side
bring it to the notice of the appropriate Government to
exercise its power under Section 15-A of the Act, but he
cannot as in the present case on his own exercise the said
power because that power under Section 15-A is confined
to the appropriate Government only. Therefore we have to
negative the argument of Mr Joshi that it is open to the
Commissioner while considering the grant of approval to
exercise the power either found in Section 15-A of the Act
or similar power exercising his jurisdiction under proviso
to Section 11(1) of the Act."
11.7. The Hon'ble Supreme Court in Sunny Abraham Vrs.
Union of India, (2021) 9 SCR 892 clarified with respect to
"prior approval" vis-à-vis "permission" as follows:
"7. The Delhi High Court in the appellant's case
primarily examined the issue as to whether having
regard to the aforesaid Rules, a charge sheet or
charge memorandum could be given ex-post facto
approval or not. The main distinguishing feature
between the case of the appellant and that decided
in Union of India and Ors. Vrs. B.V. Gopinath, (2013)
14 SCR 185 is that in the facts of the latter
judgment, the subject charge memorandum did not
have the ex-post facto approval. Stand of the
respondents is that there is no bar on giving ex-post
facto approval by the Disciplinary Authority to a
charge memorandum and so far as the present case
is concerned, such approval cures the defect
exposed in Gopinath's case. On behalf of the
appellant, the expression "non est" attributed to a
charge memorandum lacking approval of the
Disciplinary Authority has been emphasized to repel
the argument of the respondent authorities.
8. The respondents' argument was accepted by the
High Court mainly on two counts. First, there was no
ex-post facto approval to the charge memorandum in
Gopinath's case. Approval implies ratifying an
action and there being no requirement in the
concerned Rules for prior approval, ex-post
facto approval could always be obtained. On
this point, the cases of Ashok Kumar Das and
Others Vrs. University of Burdwan and Others,
(2010) 3 SCC 616 and Bajaj Hindustan Limited Vrs.
State of Uttar Pradesh and Others, (2016) 12 SCC
613 are relevant. As regards the charge
memorandum being declared non est, it was held by
the High Court:
'26. However, question would arise whether this
ratio would be applicable for as per the
respondents as in Union of India and Ors. Vrs.
B.V. Gopinath reported as (2013) 14 SCR 185,
the Supreme Court has used the term "non
est". The expression non est can be used as
non est inventus or non est factum, which
means a denial of the execution of an
instruction sued upon. Non est inventus is a
Latin phrase which means "he is not found".
[See Black's Dictionary 8th Edition at page
1079-1980]. Indeed it could be argued that the
use of the expression would indicate that the
charge sheet was illegal and void for want of
approval.' (quoted verbatim from the copy of
the judgment as reproduced in the paperbook)
The cases of Ashok Kumar Das (supra) and
Bajaj Hindustan Limited (supra) were referred
to for the proposition that the approval
includes ratifying an action, which obviously
could be given ex-post facto. The following
passage from the case of Bajaj Hindustan Limited
(supra) was quoted in the judgment under appeal:
'7. As is clear from the above, the dictionary
meaning of the word "approval" includes
ratifying of the action, ratification obviously can
be given ex post facto approval. Another aspect
which is highlighted is a difference between
approval and permission by the assessing
authority that in the case of approval, the
action holds until it is disapproved while in
other case until permission is obtained. In the
instant case, the action was approved by the
assessing authority. The Court also pointed
out that if in those cases where prior
approval is required, expression "prior"
has to be in the particular provision. In the
proviso to sub-section (1) of Section 3-A word
"prior" is conspicuous. For all these reasons, it
was not a case for levying any penalty upon
the appellant. We, therefore, allow this appeal
and set aside the impugned judgment [Bajaj
Hindustan Ltd. Vrs. State of U.P., Misc. Single
No. 3088 of 1999, order dated 30-9-2004 (All)]
of the High Court as well as the penalty. No
order as to costs.' (quoted verbatim from the
copy of the judgment as reproduced in the
paperbook).
9. The following passage from the case of Ashok
Kumar Das (supra) has also been quoted in the
judgment under appeal:
'11. In Black's Law Dictionary (Fifth Edition), the
word "approval" has been explained thus:
'Approval.--
The act of confirming, ratifying, assenting,
sanctioning, or consenting to some act or thing
done by another.'
Hence, approval to an act or decision can
also be subsequent to the act or decision.
12. In U.P. Avas Evam Vikas Parishad, 1955 Supp.
(3) SCC 456, this Court made the distinction
between permission, prior approval and
approval. Para 6 of the judgment is quoted
hereinbelow:
'6. This Court in Life Insurance Corpn. of
India Vrs. Escorts Ltd., (1986) 1 SCC 264,
considering the distinction between
"special Permission" and "general
permission", previous approval" or "prior
approval" in para 63 held that:
'63. *** we are conscious that the word
'prior' or 'previous' may be implied if
the contextual situation or the object
and design of the legislation
demands it, we find no such
compelling circumstances justifying
reading any such implication into
Section 29 (1) of the Act.'
Ordinarily, the difference between
approval and permission is that in the
first case the action holds good until it is
disapproved, while in the other case it
does not become effective until permission
is obtained. But permission subsequently
granted may validate the previous Act, it
was stated in Lord Krishna Textiles Mills
Ltd. Vrs. Workmen, AIR 1961 SC 860,
that the Management need not obtain the
previous consent before taking any action.
The requirement that the
Management must obtain approval
was distinguished from the
requirement that it must obtain
permission, of which mention is made
in Section 33(1).'
***
15. The words used in Section 21 (xiii) are not
"with the permission of the State Government"
nor "with the prior approval of the State
Government", but "with the approval of the
State Government". If the words used were
"with the permission of the State Government",
then without the permission of the State
Government the Executive council of the
University could not determine the terms and
conditions of service of non-teaching staff.
Similarly, if the words used were "with
the prior approval of the State
Government", the Executive Council of the
University could not determine the terms
and conditions of service of the non-
teaching staff without first obtaining the
approval of the State Government. But
since the words used are "with the
approval of the State Government", the
Executive Council of the University could
determine the terms and conditions of
service of the non-teaching staff and
obtain the approval of the State
Government subsequently and in case the
State Government did not grant approval
subsequently, any action taken on the
basis of the decision of the Executive
council of the University would be invalid
and not otherwise." (quoted verbatim from
the copy of the judgment as reproduced in the
paperbook).
10. As it has already been pointed out, the High Court
sought to distinguish the case of B.V. Gopinath
(supra) with the facts of the present case on the
ground that in the case of the appellant, the
Disciplinary Authority had not granted approval at
any stage and in the present case, ex-post facto
sanction of the charge memorandum or charge sheet
was given when the departmental proceeding was
pending. The High Court found such approach to be
practical and pragmatic, having regard to the fact
that the departmental proceeding had remained
pending in the case of the appellant and evidences
had been recorded. The High Court thus considered
the fact that in the case of B.V. Gopinath (supra), the
proceeding stood concluded whereas in the
appellant's case, it was still running when ex-post
facto approval was given. That was the point on
which the ratio of B.V. Gopinath (supra) was
distinguished by the High Court.
11. We do not think that the absence of the expression
"prior approval" in the aforesaid Rule would have
any impact so far as the present case is concerned
as the same Rule has been construed by this Court
in the case of B.V. Gopinath (supra) and it has been
held that charge sheet/charge memorandum not
having approval of the Disciplinary Authority would
be non est in the eye of the law. Same interpretation
has been given to a similar Rule, All India Services
(Discipline and Appeal) Rules, 1969 by another
Coordinate Bench of this Court in the case of State of
Tamil Nadu Vrs. Promod Kumar, IPS and Another,
(2018) 17 SCC 677] (authored by one of us, L.
Nageswara Rao, J). Now the question arises as to
whether concluded proceeding (as in the case of B.V.
Gopinath) and pending proceeding against the
appellant is capable of giving different
interpretations to the said Rule. The High Court's
reasoning, referring to the notes on which approval
for initiation of proceeding was granted, is that the
Disciplinary Authority had taken into consideration
the specific charges. The ratio of the judgments in
the cases of Ashok Kumar Das (supra) and Bajaj
Hindustan Limited (supra), in our opinion, do not
apply in the facts of the present case. We hold so
because these authorities primarily deal with
the question as to whether the legal
requirement of granting approval could extend
to ex-post facto approval, particularly in a case
where the statutory instrument does not
specify taking of prior or previous approval. It
is a fact that in the Rules with which we are
concerned, there is no stipulation of taking "prior"
approval. But since this very Rule has been
construed by a Coordinate Bench to the effect that
the approval of the Disciplinary Authority should be
there before issuing the charge memorandum, the
principles of law enunciated in the aforesaid two
cases, that is Ashok Kumar Das (supra) and Bajaj
Hindustan Limited (supra) would not aid the
respondents. The distinction between the prior
approval and approval simplicitor does not have
much impact so far as the status of the subject
charge memorandum is concerned."
11.8. The Supreme Court of India in Ashok Kumar Sahu Vrs.
Union of India, (2006) Supp.4 SCR 394 distinguished the
perception of "acceptance", "approval" and "ratification"
as follows:
"The expression 'approval' presupposes an existing
order. 'Acceptance' means communicated acceptance. A
distinction exists between the expressions 'approval' and
'acceptance'. Whereas in the latter, an application of mind
on the part of the competent authority is sine qua non,
approval of an order only envisages statutory entitlement.
Approval of an order is required as directed by the
statute. It can be given a retrospective effect. Even
valid contract comes into being only after the offer is
accepted and communicated. Where services of an
employee are dispensed with, the order takes effect from
the date when it is communicated and not from the date
of passing of the order. [See State of Punjab Vrs. Amar
Singh Harika, AIR 1966 SC 1313].
We are, however, not oblivious of the fact that under
certain circumstances, the expression, 'approval'
would mean to accept as good or sufficient for the
purpose of intent. Ratification is noun, of the verb
'ratify'. It means the act of ratifying, confirmation,
and sanction. The expression 'ratify' means to
approve and accept formally. It means to conform, by
expressing consent, approval or formal sanction. 'Approve'
means to have or express a favourable opinion of to
accept as satisfactory. In the instant case, there was no
question of any ratification involved as wrongly assumed
by the High Court. [See Maharashtra State Mining Corpn.
Vrs. Sunil, son of Pundikarao Pathak, (2006) 5 SCC 96]."
11.9. In Mohammad Ali Vrs. State of Uttar Pradesh, AIR 1958
All 681 the concept of "approval" has been discussed as
follows:
"6. When a person is employed under a power which is
to be exercised subject to the approval of a higher
authority or the Government, the appointment holds
good so long as the higher authority or the
Government has not disapproved of it. There is a
distinction between an appointment with the
permission of a higher authority or the
Government, and an appointment subject to the
approval of the higher authority or the
Government. An appointment which is to be
made with the permission of a higher authority
or the Government cannot be made unless the
permission is first obtained, but an
appointment which can be made subject to the
approval of a higher authority or the
Government may be made and will be rendered
invalid only when it is disapproved by the
higher authority. This distinction was pointed out
by a Full Bench of this Court in Shakir Husain Vrs.
Chandoolal, AIR 1931 All 567 (A). Sir Shah
Sulaiman, Acting Chief Justice, as he then was,
observed:
'Ordinarily the difference between the approval and
permission is that in the first the act holds good until
disapproved, while in the other case it does not
become effective until permission is obtained. But
permission subsequently obtained may all the same
validate the previous act.'
7. But as the appointment is subject to the
approval of the higher authority or the
Government the appointment though valid till
it is disapproved is nebulous and cannot be
deemed to perfect and binding. In the case of
such appointment the appointing authority
must ordinarily have the power of rescinding
the appointment before it has been approved by
the higher authority. In our judgment the
provisions of Section 9 of the U.P. Municipalities Act
do not apply such nebulous appointment, and, in the
present case, the State Government having
disapproved of the appointment of the appellant, the
appellant cannot be heard to say that the order
passed by the State Government should be quashed
by issuing an order in the nature of a writ."
11.10. A Division Bench of this Court in Saheed Sporting
Club Vrs. Kalyan Ray Choudhury, 2008 (Supp.-II) OLR
917 (Ori) has made the following clarification:
"The settled legal proposition referred to above, makes it
clear that where there is a requirement of approval by the
statutory authority, proposal/acceptance of a bid/
resolution etc. remains inoperative till it is approved. It
becomes effective only after accord of approval."
11.11. The legal proposition as exposited in the foregoing
discussion leaves no doubt to say that the expression
'approval' presupposes an existing order and approval of
an order only envisages statutory entitlement as
distinguished from the term "acceptance" which requires
application of mind. Approval of an order is required as
directed by the statute. It can be given a retrospective
effect/post-facto. Where prior approval is required,
expression "prior" has to be incorporated in the
particular provision. In the context of an administrative
act, the word "approval" does not mean anything more
than either confirming, ratifying, assenting, sanctioning
or consenting. In that process for the purpose of
according approval, the Commandant-General cannot
reverse the finding/decision of the Board, as he is not
vested with the power of the Appellate Authority.
Needless to say that the requirement that the
Commandant must obtain "approval" is distinguished
from the requirement that "permission" must be
obtained. In Section 3 of the HG Act the word "prior" is
conspicuously absent. Therefore, no infirmity or
irregularity could be imputed to the proceedings of the
Board chaired by the Commandant and seeking approval
after selection list is prepared could not said to be
irregular. The Commandant-General under a mistaken
impression that prior approval was necessary has in his
Letter dated 09.09.2016 refused to accord approval. It is
to be appreciated that the Commandant has sent the
Selection Board/Appointment Board/Enrolment Board
proceeding for approval of the Director General. Of
course, till approval is accorded, the selection list
remains inoperative, but it cannot be said that said
selection process is vitiated, as the word "approval" can
comprehend not only "pre-facto", but also "post-facto"
approval.
Conclusion:
12. The crux of the matter revolves round whether the
Commandant-General could refuse to accord "approval"
to the Selection Board/Appointment Board/Enrolment
Board proceeding after conclusion of process of
selection, but before the appointment being given by the
Commandant, on the specious ground that no prior
approval was taken with reference to Section 3 of the
Odisha Home Guards Act, 1961?
13. To consider such question, the following
communications available at Annexure-2 and Annexure-
3 of the writ petition are required to be taken into
account:
"Odisha Home Guards,
District Headquarters, Balangir
NO. 192/HG Date 13.06.2016
To
The Commandant-General, HGs
Odisha, Cuttack
Enrolment of outsiders as Home Guards.
Regarding submission of proceeding of the Enrolment
Board for a
In inviting reference to the above cited subject, this is to
intimate vacancy of Home Guards available in this
district, enrolment procedure of our Homegaurds was
conducted by an Enrolment Board from 03.05.2016 to
19.05.2016, Headquarters, Bolangir. As per the
instructions communicated vide State Home Circular order
No.24/2016, out of 87 vacancies, 06 posts of Home
Guards have been kept vacant to accommodate cases of
discharged Home Guards if any for re-appointment. The
board recommended the cases of 81 outsiders for their
enrolment as Home Guard in different PSs/Ops of the
district according to the vacancies available as on
01.05.2016.
The proceeding of the Enrolment Board is sent herewith
for favour of kind necessary approval please.
Sd/-13.06.2016
Commandant
Home Guard
Bolangir
*** *** ***
Directorate General
Fire Service, Home Guards and Civil Defence, Odisha
Nuapatna, Cuttack - 753 001
Νo. Ν-128-2015/3502/HGS., Date 09.09.2016
To
The Commandant,
Home Guards, Bolangir.
Ref.: Your Letter No. 192/HG, dated 13.06.2016
and No.297/HG, dated 25.08.2016.
Sub: Regarding approval of the Selection Board
proceeding for appointment of Home Guards.
I am directed to intimate that Commandant-General,
Home Guards has been pleased not to approve your
proposal for appointment of 81 (Eighty one) persons
as Home Guards in Bolangir district Homeguards
organization as prior approval was not taken
from this Directorate General and the
Appointment Board of Home Guards was done in an
irregular manner.
Sd/-
L.G.P.F.S.,
HGs & CD,
Odisha, Cuttack."
13.1. As is apparent from above communications that the
Commandant having completed selection process in
connection with Advertisement dated 12.04.2016,
submitted the proceeding of Selection Board/
Appointment Board/Enrolment Board to the
Commandant-General as required under Section 3 of the
HG Act for according "approval". The Commandant-
General on the contrary has refused to accord "approval"
on the ground that no "prior approval" was taken from
the Directorate General.
13.2. Having regard to the enunciation of legal position of the
terms "subject to" and "approval" as discussed supra,
the reason as cited by the Commandant-General for not
according approval is flimsy, vague and untenable
inasmuch as Section 3 of the HG Act does not envisage
"prior approval" of the Director General. It is at the time
of appointment the Commandant (Appointing Authority)
sought for approval and rightly, because of the term
"subject to" contained in Section 3 of the HG Act. In view
of law laid down by the Courts, it is unequivocal that the
Commandant-General should not have acted as the
Appellate Authority.
13.3. From the exposition of law it is untrammelled legal
consequence that "approval" presupposes that there is
already a statutory framework in place which grants
certain rights or entitlements and when one speaks of
approval in legal terms, it is about recognizing and
affirming what has already been legislated or ordered.
On the contrary, "acceptance" necessitates cognitive
engagement and deliberation on the part of the accepting
party, which involves evaluating the implications of what
is being accepted and making an informed decision
based on that evaluation.
13.4. Even if prior approval is not taken, the selection
proceeding of the Board could be accorded post facto by
ratification in view of one of the meanings of "approval"
as suggested by different pronouncements is
"ratification". The expression 'ratify' means to approve
and accept formally. A Division Bench of this Court
considered the meaning and purport of the term
"ratification" in the case of Kali Prasad Mishra Vrs. State
of Odisha, AIR 2023 Ori 165 and observed:
"29. Black's Law Dictionary, Seventh Edition, page 1268
defines the term 'ratification' as confirmation and
acceptance of a previous act, thereby making the act
valid from the moment it was done. Concise Law
Dictionary, by P.G. Osborn, published by Sweet and
Maxwell, 1927 explains "ratification" as the act of
adopting a contract or other transaction by a person
who was not bound by it originally, e.g., because it
was entered into by an "unauthorised agent".
Ratification cannot take place where the party who
professes to ratify a transaction was not in existence
when it took place.
30. The Latin maxim "Omnis ratihabitio retrorahitur et
mandato priori aequiparatur", means that every
ratification is dragged back and treated as equal to
a command or previous authority. In simple terms, it
means that "doctrine of ratification" comes into
picture if a person has done something on behalf of
another person without any authority, knowledge or
consent, then if such "other person" ratifies the
same, then the same result would come as if the act
was done on his own."
13.5. The argument of Sri Dayanidhi Lenka, learned
Additional Government Advocate as advanced based on
instruction contained in the Circular dated 03.07.2014
that the Commandant should have adhered to the terms
of such Circular does not hold water. The Circular
indicates requirement of "prior approval" of the
Commandant-General for appointment of members of
Home Guards. In this context it is to be noted that the
manner in which it is sought to be read is misdirected
inasmuch as there is no requirement of "prior approval"
envisaged under the statute. It may require to be stated
emphatically that any instruction by way of Circular
which is contrary to statutory provision has no force of
law.
13.6. It is trite vide, Orient Paper Mills Ltd. Vrs. Union of India,
AIR 1969 SC 48 that no authority however high placed
can control the decision of a judicial or a quasi judicial
authority. In Union of India Vrs. Somasundaram
Viswanath, 1988 Supp.3 SCR 146 it has been succinctly
held that "If there is a conflict between the executive
instructions and the rules made under the proviso to
Article 309 of the Constitution of India, the rules made
under proviso to Article 309 of the Constitution of India
prevail, and if there is conflict between the rules made
under the proviso to Article 309 of the Constitution of
India and the law made by the appropriate Legislature
the law made by the appropriate Legislature prevails".
See also, SK Nausad Rahaman Vrs. Union of India, 2022
LiveLaw (SC) 266.
13.7. It is also well-settled that executive instructions cannot
amend or supersede the statutory Rules or add
something therein, nor the orders be issued in
contravention of the statutory rules for the reason that
an administrative instruction is not a statutory Rule nor
does it have any force of law; while statutory rules have
full force of law provided the same are not in conflict
with the provisions of the Act. [Vide, State of U.P. Vrs.
Babu Ram Upadhyaya, AIR 1961 SC 751; State of Tamil
Nadu Vrs. Hind Stone, AIR 1981 SC 711].
13.8. In Punit Rai Vrs. Dinesh Chaudhary, (2003) 8 SCC 204;
Union of India Vrs. Naveen Jindal, (2004) 2 SCC 510 and
State of Kerala Vrs. Chandra Mohan (2004) 3 SCC 429, it
has been held that executive instructions cannot be
termed as law within the meaning of Article 13(3)(a) of
the Constitution of India. In Bishamber Dayal Chandra
Mohan Vrs. State of U.P., AIR 1982 SC 33 it is observed
that, the difference in a statutory order and an executive
order observing that executive instruction issued under
Article 162 of the Constitution of India does not amount
to law. However, if an order can be referred to a
statutory provision and held to have been passed under
the said statutory provision, it would not be merely an
executive fiat but an order under the statute having
statutory force for the reason that it would be a positive
State made law. So, in order to examine as to whether
an order has a statutory force, the Court has to find out
and determine as to whether it can be referred to the
provision of the statute.
13.9. Statutes are to be read in their plain language and not
otherwise. Reference may be had to M.S.P.L. Ltd. Vrs.
State of Karnataka, 2022 LiveLaw (SC) 886. In Union of
India Vrs. Hansoli Devi, (2002) Supp.(2) SCR 324, it has
been stated thus:
"Similarly, it is not permissible to add words to a statute
which are not there unless on a literal construction being
given a part of the statute becomes meaningless. But
before any words are read to repair an omission in the
Act, it should be possible to state with certainty that these
words would have been inserted by the draftsman and
approved by the legislature had their attention been
drawn to the omission before the Bill had passed into a
law. At times, the intention of the legislature is found to be
clear but the unskilfulness of the draftsman in introducing
certain words in the statute results in apparent
ineffectiveness of the language and in such a situation, it
may be permissible for the court to reject the surplus
words, so as to make the statute effective."
13.10. If the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than
to expound those words in their natural and ordinary
sense. The words themselves so alone in such cases best
declare the intent of the lawgiver. In Nairin Vrs.
University of St. Andrews, 1909 AC 147, it is held that,
"Unless there is any ambiguity it would not be open to the
Court to depart from the normal rule of construction which
is that the intention of the Legislature should be primarily
gathered from the words which are used. It is only when
the words used are ambiguous that they would stand to
be examined and construed in the light of surrounding
circumstances and constitutional principle and practice."
13.11. In Ram Rattan Vrs. Parma Nand, AIR 1946 PC 51, it
is held as follows:
"The cardinal rule of construction of statutes is to read the
statutes literally, that is, by giving to the words their
ordinary, natural and grammatical meaning. If, however,
such a reading leads to absurdity and the words are
susceptible of another meaning, the Court may adopt the
same. But if no such alternative construction is possible,
the Court must adopt the ordinary rule of literal
interpretation. In the present case, the literal construction
leads to no apparent absurdity and therefore, there can
be no compelling reason for departing from that golden
rule of construction."
13.12. In S. Narayanaswami Vrs. G. Panneerselyam, AIR
1972 SC 2284, the Court held that "where the statute's
meaning is clear and explicit, words cannot be
interpolated".
13.13. In Ku. Sonia Bhatia Vrs. State of U.P., (1981) 2 SCC
585 = AIR 1981 SC 1274, the Supreme Court held that a
legislature does not waste words, without any intention
and every word that is used by the legislature must be
given its due import and significance. It is a well-settled
law of interpretation that when the words of the statute
are clear, plain or unambiguous, i.e., they are
reasonably susceptible to only one meaning, the Courts
are bound to give effect to that meaning irrespective of
consequences. In this regard, reference may be made to
Nelson Motis Vrs. Union of India, AIR 1992 SC 1981.
13.14. In Vemareddy Kumaraswamy Reddy Vrs. State of
A.P., (2006) 2 SCC 670, the Supreme Court held that,
"It is said that a statute is an edict of the legislature. The
elementary principle of interpreting or construing a statute
is to gather the mens or sententia legis of the legislature.
It is well-settled principle in law that the court cannot
read anything into a statutory provision which is plain
and unambiguous."
13.15. There is nothing in Section 3 of the Odisha HG Act
to read "approval" as if "prior approval". Given the
principles of interpretation of statute and legal
exposition as to "approval", the word "prior" could not be
prefixed in the instructions by way of Circular which
leads to construction of distorted meaning. Thus, to this
extent the instruction that to appoint the members of
Home Guards, the Commandant is required to have
"prior approval" is contrary to express provisions of the
statute and no power has been granted to the
Commandant-General to issue such Circular by pre-
fixing the word "prior" before the word "approval".
13.16. Under above premises, the reason assigned by the
Commandant-General in the Letter dated 09.09.2016
that since there was absence of "prior approval", the
proceeding for selection of members of Home Guards by
the Selection Board/Appointment Board/Enrolment
Board becomes "irregular" does not stand to reason.
14. In the wake of above discussion, analysis of factual and
legal position on different aspects, the refusal to accord
"approval" on solitary ground that no "prior approval"
was sought for by the Commandant is bereft of
rationality and thereby the Letter dated 09.09.2016
issued by the Directorate General, Fire Service, Home
Guards and Civil Defence, Odisha cannot be
countenanced. Therefore, the same is liable to be
quashed. Hence, this Court does so.
15. Ergo, the opposite parties are directed to follow the
consequences of such quashment of Letter dated
09.09.2016 (Annexure-3) refusing to accord "approval"
to the proceeding of the Selection Board/Appointment
Board of Home Guards and carry out the consequential
effect and extend benefits to the selected candidates in
connection with Advertisement dated 12.04.2016
(Annexure-1).
15.1. Needless to observe that the entire process is hoped to
be concluded within a period of three months from date.
16. In the result, the writ petition stands disposed of in the
above terms, but in the circumstances, there shall be no
order as to costs.
17. As a result of disposal of the writ petition, all pending
interlocutory applications, if any, shall stand disposed
of.
(MURAHARI SRI RAMAN)
JUDGE
Digitally Signed The 17th April, 2025//MRS/Laxmikant/Suchitra
