“Approval Comprehends Also Post-Facto Approval”: Orissa High Court Quashes Refusal Of Home Guard Appointment List, Directs Commandant-General To Accord Approval
Isabella Mariam
The High Court of Orissa Single Bench of Justice Murahari Sri Raman has held that the refusal by the Commandant-General of Home Guards to accord approval for appointment of selected candidates was without statutory foundation. The Court quashed the rejection, directed the Commandant-General to consider the selection list for approval in accordance with law, and clarified that “approval” under Section 3 of the Odisha Home Guards Act, 1961 does not imply a requirement of “prior approval”.
In a judgment delivered on 17 April 2025, the Court held that the statutory scheme allows for approval post selection and before appointment, and such approval can be given post-facto. It further observed that refusal based on absence of prior approval lacks legal tenability. The Court directed that the writ petitioner’s selection and those of similarly placed candidates be considered afresh by the competent authority, in line with the applicable Act and Rules.
The case arose from the selection process conducted by the Commandant of Home Guards, Bolangir, pursuant to an advertisement issued on 12 April 2016, for enrolment of 81 Home Guard posts. Twenty-three of these were reserved for women. The eligibility criteria included a minimum age of 20, passing of at least the Lower Primary Examination in Odia language, and physical fitness.
In response, 2,120 applications were received. The Selection/Appointment/Enrolment Board chaired by the Commandant of Home Guards, Bolangir conducted the process, including medical tests and eligibility verification, and finalized a list of 81 selected candidates. The name of the petitioner, Subala Kumar Nayak, appeared at Serial No. 25 on the final list.
Following completion of the process, the Board’s proceedings were submitted to the Commandant-General for approval on 13 June 2016. However, the Commandant-General refused to accord approval via letter dated 9 September 2016, citing that “prior approval” had not been taken and terming the process “irregular”.
Subsequently, on 26 October 2016, a fresh advertisement was issued for 67 posts, this time with prior approval. This prompted the petitioner to approach the High Court under Articles 226 and 227 of the Constitution, challenging the refusal to approve the earlier selection list.
In the counter affidavit, the respondents argued that the initial advertisement dated 12 April 2016 was issued without prior approval, as required under Section 3 of the Odisha Home Guards Act, 1961, and Circular dated 3 July 2014. Hence, the selection process, they contended, was void ab initio. They referred to Letter No. 3852/HGs dated 7 October 2016 granting approval for the second advertisement, arguing that the subsequent process alone was valid.
The petitioner’s counsel countered that no statutory requirement mandates prior approval before initiating the selection process. He submitted that Section 3 of the HG Act merely requires the Commandant to seek approval for “appointment,” not selection. He further contended that the refusal based on absence of prior approval misinterpreted the statutory provision and led to unjust invalidation of an otherwise valid selection.
The Court heard the matter finally on 15 April 2025. The interveners, who were also selected candidates from the 12 April 2016 advertisement, supported the petitioner’s arguments.
The key issue before the Court was whether approval under Section 3 of the Odisha Home Guards Act, 1961 must be obtained before starting the selection process, or whether it is required only before appointment.
The Court stated: “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.”
It recorded: “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’.”
“It is 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.”
The Court examined the 2014 Circular stating: “If there are any appointment/reappointment of Home Guards without prior approval of the Commandant-General, those shall be treated as void ab initio.” It held: “The emphasis is on the word ‘appoint’, not the process of selection of members of Home Guards for appointment.”
It examined the phrase “subject to the approval of the Commandant-General” and held: “The expression ‘subject to’ means conditional upon. These words should be given a reasonable interpretation, an interpretation which would carry out the intention of the legislature.”
The Court cited multiple Supreme Court rulings to explain that “approval” does not automatically imply “prior approval.” It held: “There is nothing in the language of the said provision to suggest that such ‘approval’ is required to be construed as ‘prior approval’.”
“In the context of an administrative act, the word ‘approval’ does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting.”
It stated: “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.”
Further: “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.”
“The Commandant-General, under a mistaken impression that prior approval was necessary, has in his Letter dated 09.09.2016 refused to accord approval.”
The Court also stated: “While the list remains inoperative until approved, it cannot be held invalid. Approval, even if post-facto, would suffice.”
It concluded that: “The reason 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’.”
The High Court quashed the communication issued by the Commandant-General refusing to approve the proceedings of the Selection Board constituted in relation to the advertisement dated 12.04.2016. The Court held that the instruction requiring “prior approval” was contrary to the express provisions of the Odisha Home Guards Act, 1961 and not supported by any statutory power.
It observed: “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.”
Accordingly, the Court concluded: “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.”
It further held: “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.”
The Court then issued the following direction: “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).”
Additionally, the Bench stated: “Needless to observe that the entire process is hoped to be concluded within a period of three months from date.”
The writ petition was accordingly disposed of, with no order as to costs. The Court further directed that all pending interlocutory applications shall stand disposed of as a consequence of the final judgment.
Advocates Representing the Parties
For the Petitioner: M/s. Manoja Kumar Khuntia, Gyana Ranjan Sethi, J.K. Digal, Ms. Babita Kumari Pattnaik, Advocates
For the Respondents: Mr. Dayanidhi Lenka, Additional Government Advocate
For the Interveners: M/s. Bibhuti Bhusan Swain, Sunil Kumar Swain, Advocates
Case Title: Subala Kumar Nayak v. Commandant-General of Home Guards, Odisha and Another
Case Number: W.P.(C) No.20096 of 2016
Bench: Justice Murahari Sri Raman
[Read/Download order]
