Orissa High Court: In the present writ petition, the petitioner, challenged the validity of Rule-18(2) and Rule 19(1) proviso of the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (‘2007 Rules’) and the order passed by the Government which rejected his appointment as a Civil Judge under the Orissa Public Service Commission (‘OPSC’) and permanently debarred him from future government employment due to non-compliance of 2007 Rules. The Division Bench of Dixit Krishna Shripad* and M.S. Sahoo, JJ., upheld the constitutional validity for the 2007 Rules, but found that the permanent debarment of the petitioner from future employment was disproportionate as it was vitiated by lack of reasons.
Background:
The petitioner, a Court employee who belonged to the Scheduled Caste, had applied for the post of Civil Judge, pursuant to OPSC Notification. The petitioner, at the time of applying for the post, submitted his application not through his employer, as required under the notification, nor had he taken “No Objection Certificate” before gaining entry to the recruitment fray.
Consequently, a the impugned order dated 30-6-2017 was issued which permanently debarred the petitioner from Government employment based on two grounds:- firstly, that he had applied for appointment to the judicial post directly, i.e., not through the Head of the Department in which he had already been employed, and secondly, that he had falsely stated in his online application that he was not a departmental candidate. The respondents further submitted that the petitioner had perpetrated certain misconduct in the examination and therefore, in terms of extant Rule, the impugned action had been taken to deny appointment coupled with a permanent ban for Government employment.
Aggrieved with the respondents’ action, the petitioner filed a petition in the Writ Court seeking declaration of Rules 18(2) and 19(1) proviso of the 2007 Rules as ultra vires to Articles 14 and 16 of the Constitution; quashing of the impugned order by the respondents under Annexure 9 and Clause 5(ii) and (iii) and Clause 6 (v) of the Advertisement No. 3 of 2016-2017 under Annexure 1; and issuance a writ of mandamus to grant appointment letter to the post of Civil Judge on the basis of selection vide Notification dated 2-3-2017 issued by OPSC.
The counsels for the respondents supported the action taken by the Government and filed the counter resisting the petition. They submitted that the steps taken by the Government had been taken perfectly in accordance with law and after giving reasonable opportunity of hearing, there was no warrant for the interference of Writ Court. It was further contended that a Writ Court was not a Court of appeal to undertake deeper examination of the dispute, since the jurisdiction was limited. Analysis and Decision on vires of 2007 Rules and Permanent Debarment of judicial aspirant:
The Court firstly addressed the constitutional validity of the 2007 Rules and noted that the 2007 Rules were promulgated in exercise of powers conferred by the proviso to Article 309 read with Articles 233, 234 and 235 of the Constitution, which bestowed on the High Court a quasi-legislative power. The Court further referred to Ram Krishna Dalmia v. S.R. Tendolkar, 1958 SCC OnLine SC 6, and reiterated that delegated legislations like the 2007 Rules, enjoyed a measure of presumptive constitutionality.
The Court further pointed out the impugned proviso was a matter of policy arising from working experience of the Government. The Court emphasised that although the degree of presumption of constitutionality of a delegated/subordinate legislation like 2007 Rules is comparatively not as high as in the case of a statute.
“A piece of subordinate legislation made by the delegate from the experience gained through the years cannot be struck down by a stroke of pen. An argument to the contrary runs counter to the constitutional jurisprudence of at least half a century”.
The Court further pointed out that subject clauses of OPSC recruitment notification were nothing but the replica of what the Rules prescribed and therefore they too cannot be faltered.
The Court held that the impugned order debarring the petitioner from Government service permanently was too harsh to be sustained and such harsh and disproportionate treatment meted out an erring citizen runsn amuck of doctrine of proportionality. The Court pointed out that there is scope in the argument that service of the petitioner is not ‘with the Government’ as such, inasmuch as he happened to be in the Court Service (non-judicial). “As a layman, what he has done is wrong simpliciter and therefore, he cannot be crushed by sledgehammer, when a mild pinch would do the rightful”.
The Court further stated that the impugned order, which not only de-candidature the petitioner for the recruitment but also debarred him permanently from Government employment did not show for what reason such harsh penal action was levied on the petitioner.
The Court took note of the respondents’ contention that reasons debarring the petitioner from government service may not be found in the impugned order itself, but in the relevant file, and held that this contention runs contrary to Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
Relying on Bhupendra Nath Hazarika v. State of Assam, (2013) 2 SCC 516 the Court said that the Government must conduct itself as a model employer and in a constitutionally ordained Welfare State a citizen could not be told that the reasons for a decision were stacked in the Godown of the Government since ours was not the East India Company of bygone era. The Court emphasised that the authority who made an order in exercise of statutory power could not say that the reasons were available in the file that was not indicated in the order itself.
The Court examined the nature of power availed to the Government under Rule 21 of the 2007 Rules to debar a candidate from future public employment and noted that the heading of Rule 21i.e., – Penalty for misconduct in the examination, made it evident that the Rule was intended for serious misconduct such as impersonation, document fabrication, or deliberate misrepresentation. The Court held that the act of the petitioner did not fit within the ambit of the same. Furthermore, when right to public employment subjected to conditions was one of the facets of Article 16 of the Constitution, the Government or the Public Service Commission had to be circumspect in invoking such a penal provision, more particularly when the candidate was denied appointment to the post in question.
The Court declined to grant an appointment order to the petitioner, since his entry to the recruitment fray was marred by illegalities, such as, not sending the application through Head of the Department nor with the no objection from the employer and granting a direction to appoint such an erring candidate that too to the post of Civil Judge, in the circumstances was not warranted. The Court further clarified that a Writ Court could not direct such appointment.
The Court, thus, allowed the petition in part and upheld the constitutional validity of 2007 Rules and the impugned paragraphs of OPSC Recruitment Notification. The Court rejected the petitioner’s claim for appointment; however, it quashedthe impugned dated 30-6-2017 to extent that it imposed a permanent bar on the petitioner’s eligibility for future government employment, subject to his eligibility under the law.
[Dibakar Patra v. State od Odisha, 2025 SCC OnLine Ori 2438, decided on 17-6-2025]
*Judgment authored by Justice Dixit Krishna Shripad
Advocates who appeared in this case:
For the Petitioner: P.K. Rath, Senior Advocate with A. Behera, S.K. Behera, P. Nayak, S. Das and S. Rath, Advocates
For the Opposite Parties 1 and 2: S.B. Panda, Additional Government Advocate
P.K. Mohanty, Senior Advocate with D.N. Mohapatra, J. Mohanty, P.K. Nayak, S.N. Dash, P.K. Pasayat and P. Mohanty, Advocates
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