Right to Travel Abroad is Fundamental Right ; Executive Instructions Cannot Override: Orissa High Court Quashes Denial of NOC to Govt Doctor Facing Departmental Proceedings

“Letter dated 28.01.2014 is not ‘Law’ within the meaning of Article 21. It cannot be the basis to deny personal liberty” –  On 11th November, 2025, the Orissa High Court delivered a constitutionally significant ruling in Dr. Ashok Kumar Behera v. State of Odisha and others, quashing two rejection orders that had denied a government doctor the issuance of a No Objection Certificate (NOC) for obtaining a passport. The rejection was solely based on pending departmental proceedings and unauthorised absence from duty. Justice Sashikanta Mishra, deciding the matter under Articles 21, 226, and 227 of the Constitution, emphatically held that the right to travel abroad is a part of the fundamental right to personal liberty, and any restriction on it must be supported by enacted law and not mere executive communications.

The Court declared that the executive instruction dated 28.01.2014, relied upon by the government to deny NOC, “cannot override constitutional guarantees”, and that its application in this case had the effect of “placing an unconstitutional embargo on personal liberty.”

“Mere Pendency of Disciplinary Proceedings Cannot be Equated with Guilt” – Court Emphasizes Presumption of Innocence for Government Servants

Dr. Behera, a government-employed doctor due to retire in January 2026, had sought to visit his daughter and grandchild in Singapore. As required under the Passport Manual, 2020, he applied to his department for a NOC. However, his request was rejected twice – first on 12.07.2022 and again on 21.03.2025 – with the department citing his unauthorised absence since 2013 and three pending departmental proceedings (one of which was later dropped).

Despite informing the authorities that one of the vigilance cases had ended in acquittal and that he was cooperating with the others, Dr. Behera was again denied clearance, prompting him to move the High Court under Article 226.

Justice Mishra, after a detailed examination of the facts and legal framework, found the action of the authorities unjustified and legally unsustainable, observing:

“Mere pendency or contemplation of disciplinary proceeding cannot, under any circumstances, be treated as proven guilt. It would militate against the fundamental tenet of criminal jurisprudence that every person is presumed innocent until proven guilty.”

He added that the continued denial of NOC, despite the petitioner’s consistent cooperation with investigations and absence of any conviction or adverse findings, was “an arbitrary restriction” on his fundamental rights.

“Passport Act Does Not Create an Absolute Bar on Issuance Due to Departmental Proceedings” – Court Refuses to Accept Executive Circular as Substitute for Law

The State Government relied on an executive circular dated 28.01.2014, which directed that NOCs may only be issued if no departmental proceedings are pending or contemplated. However, the Court dismissed the binding nature of the circular, stressing that only ‘law’ enacted by a competent legislature can justify curtailment of fundamental rights under Article 21.

In clear terms, the Court observed: “Letter dated 28.01.2014 cannot by any stretch of imagination be treated as enacted law. However, it serves to curb the right of a person to travel abroad albeit indirectly, for without NOC, the employee cannot even apply for passport.”

Referring to the Constitution Bench ruling in Maneka Gandhi v. Union of India (AIR 1978 SC 597), the Court reiterated that “no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure and the deprivation is effected strictly in accordance with such law.”

The Court made it clear that any restriction on liberty under Article 21 must be based on "enacted law", not administrative guidelines or departmental circulars.

“Passport Manual Must Be Interpreted Consistent with Fundamental Rights” – Requirement of NOC Cannot Lead to Denial of Liberty

While acknowledging that Clauses 4.23 to 4.25 of the Passport Manual, 2020 make it mandatory for government employees to furnish NOC or prior intimation, the Court asserted that such provisions must be read in light of constitutional protections.

It noted that even the Passport Manual allows for alternatives, such as self-declaration, when NOC is not forthcoming:

“NOC cannot be denied arbitrarily, and the Manual must be read in conformity with fundamental rights under Article 21.”

The Court cautioned that interpreting such procedural requirements in a rigid manner would convert a constitutional right into a privilege, thereby eroding its legal sanctity.

“Executive Convenience Cannot Trump Fundamental Rights” – Decision Marks Clear Judicial Disapproval of Bureaucratic Overreach

Justice Mishra’s judgment echoed strong disapproval of the executive's tendency to weaponize departmental pendency to control or suppress fundamental freedoms of public servants:

“Viewed from another angle, the restriction imposed by the State Government is unjustified also for the reason that mere pendency… cannot be treated as proven guilt. It is an affront to the principle of due process.”

The Court drew support from other High Court and Supreme Court precedents, including Ashok Kumar Sipani v. Union of India, Suresh Nanda v. CBI (2008) 8 SCC 674, and Mohammad Umar v. Union of India, all of which affirm that executive authorities must exercise discretion judiciously and not mechanically.

Orders Quashed; Government Directed to Issue NOC within 6 Weeks

Ultimately, the Court found that the denial of NOC in this case was an unlawful and unconstitutional restriction on liberty, and accordingly issued the following direction:

“The orders dated 12.07.2022 and 21.03.2025 are hereby quashed. The concerned authorities are directed to issue NOC in favour of the petitioner without any further delay and in any case, not later than six weeks from today.”

A Firm Judicial Reminder: Rule of Law Trumps Executive Circulars

This ruling marks a firm judicial reassertion that no authority, including the State, can impose restrictions on a citizen’s liberty without express authority of law. The Court's insistence that “executive instructions cannot override fundamental rights” sends a strong message that bureaucratic policy cannot usurp the domain of constitutional rights.

In the broader context, this decision is likely to have nationwide ramifications, particularly for thousands of government employees who often face blanket refusals for passports or international travel solely due to pending inquiries, without any finding of guilt.

Date of Decision: 11th November, 2025