Orissa High Court
Dibakar Patra vs State Of Odisha And Another …. … on 17 June, 2025
Author: M.S. Sahoo
Bench: M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.14410 OF 2017
Dibakar Patra .... Petitioner
-Versus-
State of Odisha and another .... Opposite Parties
Advocates appeared in this case:
For Petitioner : Mr. P.K. Rath, Senior Advocate with
M/s. A. Behera, S.K. Behera, P. Nayak,
S. Das and S. Rath, Advocates
For Opp. Parties : Mr. S.B. Panda,
Additional Government Advocate
[O.P. No.1]
Mr. P.K. Mohanty, Senior Advocate with
M/s. D.N. Mohapatra, (Smt.) J. Mohanty,
Mr. P.K. Nayak, Mr. S.N. Dash, P.K. Pasayat and
Mr. P. Mohanty, Advocates
[O.P. No.2]
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Decided on: 17.06.2025
————————————————————————————–
PER DIXIT KRISHNA SHRIPAD, J.
Petitioner, a Court employee aspiring for employment in the
Odisha Judicial Service, having been denied appointment and further
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debarred from public employment, is knocking at the doors of Writ
Court essentially with the following prayers:
(i) To declare “Rule-18(2) and Rule 19(1) proviso or
Orissa Superior Judicial Service and Orissa Judicial
Service Rules, 2007 as ultra virus to Article-14 and 16 of
the Constitution of India (sic),
(ii) To quash order No.7025 dated 30.06.2017 of the
opposite party no.1 under Annexure-9 and clause-5(ii)(iii)
and clause-6 (v) of the advertisement No.3 of 2016-17
under Annexure-1 (sic), and
(iii) To issue a writ of mandamus to the opposite
party no.1 to grant appointment letter to the post of Civil
Judge on the basis of selection vide Notification dated
02.03.2017 issued by Orissa Public Service Commission.
2. After service of notice the opposite parties having entered
appearance through the learned AGA and the panel counsel have filed
the counter resisting the petition. To the said counter petitioner has filed
rejoinder. Learned advocates representing the opposite parties make
submission in justification of impugned Rules and proceedings.
3. Foundational Facts:-
(a) Petitioner, a Court employee belonging to the Scheduled
Caste, had staked his claim for appointment to the post of Civil Judge,
W.P.(C) No.14410 of 2017 Page 2 of 11
pursuant to Orissa Public Service Commission Notification, inquestion. To put it shortly, he was found to have applied for the post
not through his employer, as required under the notification, nor had he
taken “No Objection Certificate” before gaining entry to the
recruitment fray. This having angered the answering respondents, the
order dated 30.06.2017 at Annexure-9 came to be issued. The same
reads as below:-
“No.7025/L Dated the Bhubaneswar, 30th June, 2017
25-28/17
After careful consideration of the show cause
reply submitted by Sri Dibakar Patra, S/o Taru Patra,
At/P.O.-Kaunrikala, Via-Ukhanda, P.S.-Baria, Dist.-
Keonjhar, in response to the show cause notice issued
vide No.5600/L dated 25.05.2017, the Government have
been pleased to debar him from employment under the
Government.
By order of the Governor
Sd/- S.R. Bohidar
2nd A.L.R.-cum-Addl. Secretary”
(b) The above order permanently debarring the petitioner from
Government employment is premised essentially on two factors: that he
had applied for appointment to the judicial post directly, i.e., not
through the Head of the Department in which he has already been
employed, and secondly that he has falsely stated in his online
application that he was not a departmental candidate. It is a specific
case of the opposite parties that the petitioner had perpetrated certain
W.P.(C) No.14410 of 2017 Page 3 of 11
misconduct in the examination and therefore in terms of extant Rule the
impugned action has been taken to deny appointment coupled with a
permanent ban for Government employment.
(c) The impugned action taken against the petitioner by the
Government, according to learned Addl. Government Advocate, has
been perfectly in accordance with law and after giving reasonable
opportunity of hearing and therefore there is no warrant for the
interference of Writ Court, some arguable lacunae notwithstanding. He
also tells us that a Writ Court is not a Court of appeal to undertake
deeper examination of the dispute, its jurisdiction being limited in
focusing the decision making process as distinguished from decision
itself. However, all this is controverted by the learned Senior Advocate
appearing for the petitioner.
4. Having heard the learned counsel for the parties and
having perused the petition papers, we are inclined to grant a limited
indulgence in the matter as under and for the following reasons:-
4.1. The Odisha Superior Judicial Service and Odisha Judicial
Service Rules, 2007 have been promulgated in exercise of powers
conferred by the proviso to Article 309 read with Articles 233, 234 and
W.P.(C) No.14410 of 2017 Page 4 of 11
235 of the Constitution of India. Essentially, petitioner inter alia hascalled in question the proviso to Rule 19(1), which reads as under:-
“Provided that in case of a person already in
Government service, the application shall be submitted
through the appointing authority.”
It is admitted case of the petitioner that he had not applied through his
present employer. His counsel submits that there is no such
requirement, since he is not in Government service. Alternatively, he
argues that this proviso is unconstitutional being violative of Articles
14 and 16. It is not uncommon to find a proviso of the kind enacted in
several recruitment rules. Such a proviso is a matter of policy arising
from working experience of the Government. It was Justice Oliver
Wendell Holmes who said “The life law is not logic but experience….”
Legislative decisions of the kind need to be shown due deference by the
judicial institution. Courts cannot run a race of opinions with other
organs of the State, separation of powers being one of the basic features
of our Constitution vide Indira Nehru Gandhi v. Shri Raj Narain,
AIR 1975 SC 2299.
4.2. The proviso to Article 309 read with the Articles 233, 234 &
235 of the Constitution bestow on the High Court a quasi legislative
power in exercise of which 2007 Rules have been promulgated. Statutes
W.P.(C) No.14410 of 2017 Page 5 of 11
and delegated legislations like the 2007 Rules enjoy a measure of
presumptive constitutionality vide Ram Krishna Dalmia v. Justice S.R.
Tendolkar, AIR 1958 SC 538. Neither lack of competence nor
arbitrariness is demonstrated despite vociferous submissions made by
learned counsel for the petitioner. We are aware that 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.
Even to rebut this, no convincing argument is made. 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 subject clauses of OPSC
recruitment notification are nothing but the replica of what the Rules
prescribed and therefore they too cannot be faltered.
4.3. Learned Addl. Government Advocate submitted that not
sending the online application through the Head of the Department with
whom a candidate is already employed, virtually amounts to fraud and
therefore impugned action is sustainable. To us, this appears to be too
farfetched a contention, guilty mind having not been pleaded, much less
prima facie proved. There is also scope for the argument that the
W.P.(C) No.14410 of 2017 Page 6 of 11
service of petitioner is not with the „Government‟ as such, inasmuch as
he happens 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 sledge hammer, when a mild pinch would do the rightful.
There is also force in the submission of learned for the petitioner that
the impugned order debarring his client from Government service
permanently is too harsh to be sustained. A harsh and disproportionate
treatment meted out an erring citizen runs amuck of doctrine of
proportionality.
4.4. The impugned order, which not only de-candidatured the
petitioner for the recruitment but also debarred him permanently from
Government employment, is not a speaking order, as rightly argued by
petitioner‟s counsel. A perusal of its text does not show for what reason
such harsh penal action is levied on the petitioner. The contention of
learned Addl. Government Advocate that though the order itself does
not have the reasons inbuilt, the relevant file contains the reasons, runs
counter to Mohinder Singh Gill v. The Chief Election Commissioner,
AIR 1978 SC 851, wherein Justice Krishna Iyer speaking for the 5-
Judge Bench observed as under:-
W.P.(C) No.14410 of 2017 Page 7 of 11
“When a statutory functionary makes an order based
on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get
validated by additional grounds later brought out.”
4.5. Reasons should emanate from the very order itself so that for
an onlooker it provides the opportunity to know why such an order is
made. It is a most legitimate expectation of the person who suffered
such orders, more particularly when the right to stake claim for public
employment is a facet of Article 16 of the Constitution of India vide
Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806. The
authority who makes an order in exercise of statutory power cannot say
that the reasons are available in the file that is not indicated in the order
itself. In a constitutionally ordained Welfare State a citizen cannot be
told that the reasons for a decision are stacked in the Godown of the
Government. After all, ours is not the East India Company of bygone
era. The Government has to conduct itself as a model employer vide
Bhupendra Nath Hazarika v. State of Assam, AIR 2013 SC 234.
4.6. The vehement contention of learned Addl. Government
Advocate that under Rule-21 power does avail to the Government inter
alia to debar a candidate from future public employment cannot be
much disputed. Rule-21 of 2007 Rules has the following text:-
W.P.(C) No.14410 of 2017 Page 8 of 11
“21. Penalty for misconduct in the examination – A
candidate who is or has been declared guilty of
impersonation or of submitting fabricated document or
documents specified in Sub-rule (3) of Rule 19 which
has been tampered with or of making statements which
are incorrect or false or of suppressing material
information or of using or attempting support for his
candidature may in addition to the liability for criminal
prosecution, be debarred either permanently or for a
specified period –
(a) by the Commission from appearing at any
Preliminary Written Examination or Main
written examination or any interview held by it
for selection of candidates, and
(b) by the Government, from employment under
them as may be directed by the Commission or
the Government, as the case may be.”
4.7. It hardly needs to be stated that existence of power is one
thing and its exercise is another; existence per se is not a justification
for its exercise. Heading of the Rule is crystal clear “Penalty for
misconduct in the examination”. The text obviously gives power, as
already mentioned. What is the false statement or incorrect statement
allegedly made by the candidate, remains to be a mystery wrapped in
enigma. When right to public employment subject to conditions is one
of the facets of Article 16, the Government or the Public Service
Commission has to be circumspect in invoking such a penal provision,
more particularly when the candidate is denied appointment to the post
in question. No special reasons are assigned to justify a permanent
W.P.(C) No.14410 of 2017 Page 9 of 11
embargo as if a heinous sin is committed by the candidate. After all,
errors do occur in any human transaction. What needs to be looked into
is, whether it is a misconduct with guilty mind or a mistake simpliciter.
Our examination reveals that the arguably culpable act of the petitioner
does not fit into the former and therefore his case is miles away from
the precincts of penal provision. More is not necessary to specify.
4.8. All the above being said, learned Addl. Government
Advocate is right in telling us that no appointment order can be issued
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, as prescribed
by law. Granting a direction to appoint such an erring candidate that
too to the post of Civil Judge, in the circumstances is not warranted. A
contra view if countenanced would lay dangerous precedent in the
realm of service law. Had there been minor irregularities as were
sought to be made out on behalf of the petitioner, we would have
arrived at a different conclusion. A Writ Court cannot embark upon
such a misadventure.
In the above circumstances, this petition is allowed in part.
The challenge to subject proviso of Rules 2007 and so also to the
W.P.(C) No.14410 of 2017 Page 10 of 11
impugned paragraphs of subject OPSC Recruitment Notification is
repelled. However, a writ of certiorari issues quashing the impugned
order dated 30.06.2017 only to the extent it permanently debars the
petitioner from staking claim for Government appointment and
therefore he is entitled to participate in the future recruitment process, if
he is otherwise eligible.
Costs made easy.
(Dixit Krishna Shripad)
Judge
(M.S. Sahoo)
Judge
Orissa High Court, Cuttack
The 17th day of June, 2025/Dutta/Radha
Signature Not Verified
Digitally Signed
Signed by: RADHARANI JENA
Reason: Authentication
Location: OHC
Date: 19-Jun-2025 11:23:03
W.P.(C) No.14410 of 2017 Page 11 of 11