Approval Can Be Post-Facto—Refusal Based on Absence of Prior Nod Is Legally Unsustainable: Orissa High Court Reinstates Home Guard Selection List

“When Law Doesn’t Say ‘Prior Approval’, Bureaucratic Circulars Can’t Rewrite Statute” – In a significant decision reinforcing the supremacy of statutory interpretation over bureaucratic discretion, the Orissa High Court quashed the Commandant-General’s refusal to approve a Home Guard selection list finalized in Bolangir district in 2016. The High Court held that the Commandant-General’s rejection of the appointment process solely on the ground that 'prior approval' was not obtained was legally flawed, as the Odisha Home Guards Act, 1961 does not mandate 'prior' approval, but merely 'approval'.
Justice Murahari Sri Raman observed that: “There is nothing in the statute to suggest that such ‘approval’ must be prior in nature. The refusal by the Commandant-General on the ground of absence of prior approval is vague, flimsy, and legally untenable.”
“The Word Is ‘Approval’, Not ‘Permission’—And Certainly Not ‘Prior’”
The petitioner, Subala Kumar Nayak, was one of 81 candidates selected for appointment as Home Guards in Bolangir district through a recruitment process initiated by the local Commandant via advertisement dated 12 April 2016. The Commandant forwarded the selection list to the Commandant-General for approval on 13 June 2016. However, the Directorate rejected the list on 9 September 2016, claiming that “prior approval was not taken” before the advertisement and enrolment board was constituted.
Justice Raman, after an exhaustive review of statutory provisions, held: “Section 3 of the Home Guards Act merely requires that the appointment be made ‘subject to the approval’ of the Commandant-General. It does not use the word ‘prior’ anywhere.”
He further clarified that: “Where the statute intends to require prior approval, it uses the word expressly. The absence of ‘prior’ in Section 3 cannot be supplied by administrative instructions or circulars.”
“Circulars Can’t Override Statute” — Commandant-General's Interpretation Rejected
The Commandant-General had relied on a Circular dated 03.07.2014, which instructed that all appointments of Home Guards must receive prior approval, failing which they would be “void ab initio”.
The High Court strongly disagreed, stating: “Such instructions, not being statutory in nature, cannot override the Act or Rules. A circular cannot rewrite the law.”
The Court found that the interpretation of the Commandant-General was: “An irrational and illogical appreciation of Section 3 of the HG Act… which obliterates the entire selection process on non-existent grounds.”
“Approval Can Be Post-Facto—And Ratification Is Also a Form of Approval”
In addressing the core question—whether post-facto approval is permissible—the Court cited the Supreme Court's jurisprudence to emphasize:
“Approval can include post-facto ratification. It is not synonymous with permission, which must be obtained beforehand.”
Quoting the SC’s landmark in Vijayadevi Navalkishore Bhartia v. Land Acquisition Officer and Sunny Abraham v. Union of India, the Court reiterated:
“In administrative law, ‘approval’ means confirmation, ratification, or sanction—it may follow the act, and need not precede it.
“Selection Board Was Lawfully Constituted—Commandant-General Cannot Act as Appellate Authority”
The Court underscored that the Commandant had authority to initiate the selection, and the approval of the Commandant-General was needed only at the final appointment stage.
“The Commandant-General is not vested with appellate authority to override the Selection Board’s decision without legal justification.”
Justice Raman cautioned: “The word ‘approval’ cannot be read as an open-ended veto to nullify the entire recruitment exercise in hindsight.”
Setting aside the rejection of approval, the High Court directed the authorities to proceed with appointments in accordance with the selection list prepared under the advertisement dated 12.04.2016.
“The refusal to approve the selection list on the ground of lack of prior approval is not in consonance with the statute and is, therefore, quashed.”
This decision offers clarity on the limits of bureaucratic discretion, affirming that statutory rights and procedures cannot be overruled by circulars or administrative preferences, and that ratification is an equally valid form of approval unless expressly excluded by law.

Date of Decision: 17 April 2025