'Govt Is Model Employer, Can't Act Like East India Company': Orissa High Court Quashes 'Unreasoned' Debarment Order Against Judiciary Applicant

The Orissa High Court has come to the rescue of a Schedule Caste (SC) Court employee who was permanently debarred from government service as he applied for the post of Civil Judge and was selected in the Odisha Judicial Service (OJS) without obtaining a 'No Objection Certificate' (NOC) from his then employer.A fault was found with the impugned order since no specific reason was assigned as to why a 'permanent debarment order' was passed. The Division Bench of Justice Dixit Krishna Shripad and Justice Mruganka Sekhar Sahoo observed –“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.”Case BackgroundThe petitioner Dibakar Patra, a former Court employee, had applied to participate in the selection process of OJS 2016-17 pursuant to the notification published by the Odisha Public Service Commission (OPSC). At the conclusion of the three-tier examination, he was selected in the final merit list (dated March 02, 2017) and was placed at 'Rank 70'. However, subsequently he was found to have applied for the post not through his employer, as required under the notification, nor did he procure the NOC before gaining entry to the recruitment process. The respondent authorities, therefore, were irked by such violation of rules. As an ensuing step, an order was passed debarring him permanently from government employment. OJS Rules requiring NOC not unconstitutionalBeing aggrieved by the aforesaid debarment order, the petitioner had challenged the constitutional vires of Rule 18(2) and proviso to Rule 19(1) of the Odisha Superior Judicial Service and Orissa Judicial Service Rules, 2007 ('the Rules'). The proviso to Rule 19(1) requires a judiciary applicant, if he is already in any Government service, to submit the application through the appointing authority.It was an admitted position that the petitioner had faulted so far as the above requirement was concerned since he did not apply for the examination through his the then employer. However, it was argued on his behalf that such proviso is unconstitutional being violative of Articles 14 and 16. But the Court did not give succour to such contention and rejected the same by observing –“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.”It was further noted that the relevant Rules have been framed by the High Court in exercise of its quasi-legislative power as per the proviso to Article 309 read with Articles 233, 234 & 235 of the Constitution. Therefore, though it is a delegated legislation, still it enjoys presumption of constitutionality.“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,” it added.Reasons for debarment order can't be stacked in 'Godown of the Government'Speaking for the Bench, Justice Shripad pointed out a major lacuna in the debarment order. He highlighted that the order, which not only stripped the petitioner of his prospective judicial office but also disentitled him from all future government employment, is a 'non-speaking' one. The State Counsel argued that the reasons are though not mentioned in the order but the relevant file contains the same. However, the Court brushed off such contention.Reliance was placed on the sempiternal observations made by Justice VR Krishna Iyer in Mohinder Singh Gill v. The Chief Election Commissioner (1977) wherein he held that 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.The judgment in Secretary, State of Karnataka v. Umadevi (2006) was also cited as authority to hold that reasons must stem from the very order itself so that for an onlooker it provides the opportunity to know why such an order is made. It is, the Court emphasized, 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.As a natural corollary, the Court said, the authority who makes an order in exercise of statutory power...

'Govt Is Model Employer, Can't Act Like East India Company': Orissa High Court Quashes 'Unreasoned' Debarment Order Against Judiciary Applicant

Jyoti Prakash Dutta

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