Former Minister shows how corruption is rewarded in Judiciary

Subhas Chandra Pattanayak

Former Cabinet Minister of Orissa Sri Bhagavat Prasad Mohanty has published instances of how corruption is rewarded in Judiciary. It deserves serious attention, specifically as, Sri Mohanty is a freedom fighter and a renowned lawyer.

He has been contributing a biographical column captioned MO HAJILA DINARA KATHA to an Oriya daily titled Orissa Express. In its edition of October 25, he has given these accounts.

Without mentioning the name of a corrupt Judge, he has discussed a Judge whose upward journey to the position of the Chief Justice of Orissa High Court had begun from a lower class magistrate in Kendrapada, despite location of his corrupt practices. The man is so corrupt that even after retiring as Chief Justice of Orissa High Court, he had managed to grab the Judge-cum-Chairman post of the State Administrative Tribunal till finally fleeing away from the position due to lawyers’ strike.

Mohanty writes, he was shocked to see that his client – a notorious trader of illicit liquor, who would be punished despite his pleading, he was sure – got acquittal in all the seven irrefutable cases the State Excise Police had lodged against him. The Court was held by a Judicial Magistrate appointed for adjudication of narcotic cases in Kendrapada. Before agreeing to act his advocate, Mohanty had made it clear to the accused, that, the excise cases were so strong that, it was impossible to fetch for him any acquittal. He had responded with the words that he was interested only in being represented by a lawyer of repute. That’s all; because, then he shall not bother about the outcome.

And when the cases were answered with acquittal, it was Mohanty, despite being his lawyer, was really shocked. How could he managed to get acquitted, he asked the offender. “By bribing the Magistrate”, was the quick reply.

Mohanty got thrashed by his conscience. He grasped that, the acquittal was pre-decided. Lest the public suspect the Magistrate, a reputed lawyer was to be appointed by the offender.

Thus, at the call of his conscience, Mohanty preferred a confidential letter to the District Judge describing the case and its bribe-induced outcome in details. After 7 days of receiving this letter, the District Judge deputed the Additional District Judge to get first-hand details. Mohanty not only conformed his confidential communication, but also called the acquitted person, who clearly told of the bribe given to the Magistrate to purchase the judgment, even narrating how much money he had paid for which case. The Magistrate was transferred on report of the ADJ.

Mohanty has said that the same Magistrate was promoted to the post of District Judge and was eventually promoted to the bench of the High Court and retired as Chief Justice of Orissa.

Matter did not end there. After retirement from the Chief Justice post, the same person got reappointed as the Chairman of the State Administrative Tribunal, which is the same as the High Court for government servants.

According to Mohanty, in this position also he was selling verdicts against payola. He ultimately fled away from the Tribunal after members of the Bar raised a spectacular and aggressive strike against rampant corruption in SAT.

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Judicial Enquiry Essential to determine if Justice Laxmikanta Mohapatra did not act a conduit for a Chit Fund Mafia

 

Subhas Chandra Pattanayak

(With core information from Jayanta Kumar Das)

Had Justice Laxmikanta Mohapatra not acted a conduit for chit fund operator Pradeep Kumar Sethy, he could never have acquired a ‘B’ category plot measuring 4000 sq.ft. in the most lucrative Bidanasi Housing Project area of Markata Nagar of Cuttack and by way of its transfer, would never have formed the triangle with the State’s Advocate General Asoka Mohanty.

RTI activist Jayanta Das deserves all praise for having dug out information that are to be dealt with here. The information is available in social media, as he and Alok Jena have shared them with the society. I was expecting Justice Mohapatra to react. He is silent. Advocate General Mohanty could have also come out with his clarification. He has not. Padeep Sethy has been arrested and facing trial for cheating the chit fund depositors. With him entangled in this plot scandal are Justice Mohapatra, then of Orissa High Court on one side and Orissa’s Advocate General Asoka Mohanty on the other!

This triangular scandal has another side also. We are conducting an enquiry thereon and will deal with the same after our investigation is over.

But it is time to say, to us it seems, Justice Mohapatra has acted a conduit for the chit fund mafia Pradeep Sethy.

It seems Justice Mohapatra has acted from the beginning to arrange the plot for the economic offender. He had no real necessity for the residential plot in Markata Nagar of Cuttack City. This is evidenced in his later declaration that, being a permanent resident of Cuttack City, neither he nor any of his family would ever need a residential plot in any of the housing projects of CDA. So, evidently there was no urgency for him to use official letterhead of the High Court to apply for the plot under discretionary quota which is ethically meant for helping people who are in very urgent need of a residential plot, but quick allotment of the required land to them is not possible in the normal process. The urgency for the allocation expressed in his application is obviously not for his use, but for circumventing the allocation process for a shadow beneficiary who subsequently transpired to be a chit fund cheat. Let us see why this occurs to us.

LM_Use of High Court pad by LM in application for plotThe ‘B’ category plot could not have normally come to Sethy. Not even to Laxmikanta Mohapatra as an Individual in normal allocation process. So Mohapatra used the official letterhead of the Orissa High Court to browbeat the authorities and acquired the plot by way of allocation from the discretionary quota of the Chairman of Cuttack Development Authority.

To bag the plot, he hoodwinked the law by crafty suppression of the fact that he has already had his residential house in the city of Cuttack. He is a permanent resident of Stoney Road, Chandini Chowk, Cuttack. The law says, a resident of the City cannot be allotted with a residential plot from the CDA in the city of Cuttack. Therefore, suppressing that he has permanent house in the Cuttack City, he stated in his application dated October 11, 2006. “I have no land at Markata Nagar, Abhinaba Bidanasi, Cuttack either in my name or in the name of any of my family members”, as if Markata Nagar is a different place and not a part of the City of Cuttack. CDA also helped him in this mischief in the body of allocation.

The use of the High Court letterhead and his position as Judge of the Orissa High Court was too intimidating for the CDA staff to examine the legality and ethicality and eligibility aspects in allocation of the land to him. And, consequently, Plot No. 11-38/1332 measuring 4000 sq.ft. in ‘B’ category was given to him for only Rs.9,50,500/- under order No. 12699 of CDA on 25.5.2007. Mohapatra took over possession of the plot on 23,07.07. But did not bother about execution of the lease deed. Had the deed been executed, he would have been required to pay to the exchequer in form of Stamps. Non-execution of the lease deed for several years after allocation of the land to and taking over of the land by Justice Mohapatra was deliberate, because, a design was already on the anvil to transfer the plot to Sethy with a huge profit margin by way of commercial use of the plot, though the allocation was strictly for residential use of Justice Mohapatra.

Mahapatra had no right to use the plot in commercial transaction. Firstly, being a judge, he should not have sought for personal benefit at the discretion of the CDA chairman, which was de facto bound to make him obliged to the boss of a commercial institute that deals with allocation of plots and contracts of developmental works necessitating judicial intervention as and when occasion arises. Secondly, had he wanted not to continue with the allotted plot, he should have surrendered the same to the CDA before making any value addition thereto. He did not do. He had a design to make a commercial profit out of it. He has made the commercial transaction behind back of the CDA before the lease deed was executed  and has nose led it to put stamp of approval on his commercial deal.

I quote from his affidavit where he has informed the CDA in these words: “I have entered into negotiation with Sri Pradeep Kumar Sethy S/o Rama Chandra Sethy, resident of Ananta Nagar, 6th lane, Berhampur -760005, Dist. Ganjam, Orissa for transfer of the above plot because of my legal necessity and I have received the consideration money amounting to Rs.1,00.00.000/- (Rupees One Crore only) as agreed between us”.

Mark the mischief. He has not made this negotiation with the chit fund mafia Pradeep Sethy with permission of the CDA. He has simply declared that he has entered into negotiation with Sethy to transfer the plot to him by already having received Rs.1 crore as consideration money and has asked the CDA to transfer the said plot to Sethy, as by then the lease deed was not executed. As the lease deed was not executed, he was not to make the registration. The transfer was not to be done in the land registration office of Government of Orissa, but was to be done in the file only in the office of the CDA. So, despite the land transfer made against consideration money amounting to a crore of rupees, the same being done out of the Registration office, the stamps applicable to a Rs.1 crore worth land transaction was not to come to the exchequer.

In order not to give any scope to CDA to allot the plot to any other person than Sethy, Mohapatra stated, “I have not negotiated with any other person for transfer of the plot” and undertook “to hand over possession of the land to Pradeep Kumar Sethy after obtaining permission for transfer of the ownership allotment and before execution of the lease deed in favor of the prospective transferee”.

On receiving this affidavit, CDA “transferred” the plot from Justice Mohapatra to Pradeep Sethy under order No. 8098 dt.23.4.2011 “to be used only for residential purpose” with the stipulation that “the residential building must be constructed within one year from the date of issue of this letter”. This stipulation indicates that no “residential building” was standing on the plot by that date, which prompts us to infer that Justice Mhapatra had lied in the affidavit about standing of a two-storied building in the plot just to add about (90 lakh of rupees worth value to the plot procured by paying the CDA a sum of Rs.9,80,500/- only. Had the double-storied residential building been really there, CDA could not have subjected the transfer of the plot from Mohapatra’s name to Sethy’s name to a non-violable condition that the “residential building must be constructed within one year from the date of issue of the land transfer letter. Mohapatra being a Judge, that too a Chief Justice of a High Court now, it is expected that he should clarify the position for removal of shrouds of suspicion over the issue.

Sethy took possession of the plot on the same day, i.e. 23.4.2011 and without getting the lease deed executed, and violating the condition for residential use of the plot, entered into a negotiation with Advocate General Mohanty to transfer the plot to his name on receipt of Rs.1,00,01,000/- towards consideration money.

Thus, two major transactions worth more than Rs.2 crores was carried out on the same plot twice behind back of the Registration Office, Had the lease deeds been executed promptly after allocation of the land by the CDA, the transfer, instead of the concerned file in the office of the CDA, must have been done in the Land Registrar’s office and huge amounts of revenue in shape of stamps could have come to the State Exchequer then and there. Yet again, it transpires from the communication of CDA to Asoka Mohanty bearing No.6953 dated 22.3.13 that there was no residential building on the plot, for which Mohanty was subjected to the terms and condition that he was to construct the “Residential Building” on the plot as a “must” “within one year from the date of issue of this letter”, failing which, “the lease would be determined and allotment will be cancelled and the possession of the plot would be taken over by the Authority”.
So, here also, evidently the land was transferred to Mohanty without subjecting the said transfer to necessary stamps.

However, Sethy has stated in his affidavit that he was making the transaction with Mohanty “because of personal necessity”. But Justice Mohapatra had made the transaction with Sethy not for personal necessity, but for “Legal necessity”.

What was the “Legal Necessity” of Justice Mohapatra to negotiate with Sethy for transfer of the allocation from his name to Sethy’s name in the file of the CDA?

Unless Justice Mohapatra comes out with details of why it was a “legal necessity” for him to transfer his plot to Pradeep Sethy, it may be difficult to discard the suspicion that he has acted a conduit for the chit fund mafia in the instant case. This angle is is difficult to be discarded in view of the fact that he had not responded to any advertisement of CDA for the plot, but had applied in the High Court pad as it was understood by him that some plots of CDA were available for allotment. Mark the media added above. There he says, “I understand that some plots of land of Cuttack Development Authority are available within Cuttack Municipal area. I have no land Markata Nagar, Abhinav Bidanasi, cuttack……”. The question is, who made him understand this? When the availability of the plot was not advertised, how could he came to know of it? From the developments discussed above, we are inclined to suspect that Sethy had obtained the information and had made Justice Mahapatra apply for the same with yet unknown compulsions, which had forced to hand him over the plot under “legal necessity”. This suspicion cannot end till he gives details of the “legal necessity” and convinces the public that in this scandal, he is innocent.

A sitting Chief Justice of a High Court and an Advocate General of a State Government forming the triangle with a chit fund mafia over the plot in question, an enquiry by the Supreme Court of India into this scandal seems essential to cleanse the judicial system of misusers of their privileged positions. And, the sooner it is done, the better.

Release of J. P. Das on bail is no solution; Chief Minister ought to clarify, why the editor has escaped police action

Subhas Chandra Pattanayak

The Court granted bail to the Samaja reporter J. P. Das on January 18. A representative of the newspaper Samaja, purported to be its Law Officer rushed to Chaudwar Jail with the bail order within a very short time and at around 3 PM got Sri Das released from the jail and sped back to drop him at his residence at Cuttack.

This is unprecedented.

This is entirely different from the age-old judicial-jail practice.

Judicial-Jail practice

Bail granted, the Court’s order usually reaches the court office without any trace of haste and stage by stage slowly proceeds to the dealing staff, who with habitual dawdling prepares the documents to be sent to the jail, which the jail staff responsible for transportation of prisoners from jail to the court and back in the jail vehicle usually carry and therefore, prisoners on bail always get released in the evening after the jail lorry reaches the jail or on the next day.

But here, this judicial-jail practice was entirely tampered with.

Why?

Is it because, the Samaja management was in a hurry to whisk away Das from the jail before the trade union of Samaja employees – Utkalmani Newspaper Employees Association – reaches the jail to receive him?

Was it because, the samaja management knows that Das was made a scapegoat to save its top brass?

Was it because, the Samaja management was apprehensive of further exposure of its misdeeds unless Das was released from the jail with speedy delivery of the court oder by special messenger organized by the management?

Was it because, the management was eager to pacify Das and gain him over by convincing him of its concern for him, so that the real culprits – the executive editor et al – escape counter allegation by Das?

The judge should study the shenanigans that led to his court-office’s different treatment to bail of Das and contravention of the judicial-jail practice.

The case should have been dismissed

Had law taken its proper course, the case against Das should have been dismissed, because for the alleged offense there was no allegation against him in the FIR that had led to his arrest and legally he was not to be held responsible for the alleged offense.

Judicial conscience woke up and he got the bail; but prosecution has not withdrawn the case and therefore, he is to face trial for the offense, which he has not committed. So, release of Das on bail is no solution to his suffering. Law has been misused against him. Such misuse of law is masterminded by editorial and management controllers of the Samaja and executed by the police.

Chief Minister ought to answer

Chief Minister Naveen Patnaik should ask the Director General of Police as to when the Press Laws stipulate that the editor is responsible for any news published in the newspaper, why the police had arrested and sent to jail a trainee reporter whose job is not editing at all.

As I have informed in the preceding report basing on inputs from the tortured reporter, executive editor Satya Ray called him to meet him immediately in the cantonment police station, Cuttack. A disciplined worker, he had come there to meet him. Ray introduced him to the police officer-in-charge and immediately left, whereafter he was declared arrested. We suspect, the police had apprehended the executive editor and in that, had taken the correct step. But what happened that he was allowed to escape and Das was made the scapegoat?

We need an answer to this question from the CM.

We know, the CM is partnering with the Samaja; and because of this, the police is not daring to take any action against the illegal controllers of the paper despite direction from the High Court.

Therefore, in the instant case, the CM should clarify if his office has no role in protecting the real culprits of the Samaja and correspondingly, instituting the false case against Das.

We do not know if he knows or not, his secretary Sri Pandian had forced the labor minister Bijayasree Rautray to untimely transfer the District Labor Officer of Cuttack, for ii was he who had recommended an Industrial Dispute for adjudication against the Samaja management and had entertained several allegations from workers whom the Samaja authorities have kept as casual workers despite their rendering regular service for decades. and a lot more, whom they have been torturing by way of enforced idleness, denial of salary, denial of entry to workplace, illegal transfers and suspension from service, criminal intimidation etcetera.

It cannot be accepted that the recent communal unrest generated by the Samaja editor and publisher is not known to the CM. So the CM cannot say that he is not aware of the wrong steps the police has taken against Das. He is only to clarify, why police has not taken the required steps against the executive editor and the publisher of the Samaja.

He should divulge the reason.

Mili Panda Matter: Essential Need is Elimination of Judicial Blunder

Subhas Chandra Pattanayak

Orissa High Court has done the best by quashing the cognizance in Mili Panda matter. But yet, essential need is elimination of judicial blunder.

Mili Panda by name is known to every conscious citizen of Orissa, because she stands synonymous with withstanding the tortures that a vindictive Government inflicts.

She is the wife of revolutionary Sabyasachi Panda whom police is eager to hound, but has not succeeded in catching; which is, many fear, the reason of its vindictiveness, the impact whereof she is being forced to bear with.

She is a mirror in which the Government can see the reflection of how ugly it looks with the cosmetics of law and order when police is pressed to victimize earmarked individuals for their support to revolution against exploitation.

In her, we find, how a citizen suffers when the Government becomes a conspirator, specifically as she continues to suffer incarceration notwithstanding the State’s High Court having quashed the wrongful proceedings against her in criminal misc case No.3080 of 2010.

CRLMC No. 3080 of 2010

In preferring this case before the High Court of Orissa against wrong prosecution, Ms. Mili Panda (Subhashree Das) and two others (Kishore Kumar Jena and Sangram Bhol @ Sangram Bhola) prayed that the cognizance taken in G.R. Case No.16 of 2010 by the Judicial Magistrate (First Class) (JMFC) of Banpur and Sessions Trial commenced on commitment vide S.T. No.12/116 of 2010 in the Court of the Ad hoc Addl. Sessions Judge (F.T.C.), Khurda, arising out of Balugaon P.S. Case No.8 of 2010 corresponding to CID (CB) P.S. Case No.1 of 2010 under the Unlawful Activities (Prevention) Act (hereinafter called the Act), be quashed on the grounds shown in their petition.

Orissa High Court earmarked the question of cognizance as the crux of the issue; heard the parties and quashed the cognizance taken by the JMFC and the resultant proceedings in the sessions case by allowing the CRLMC on 19 October 2011; because to it, the cognizance taken was an act against the Act.

Prosecution acts against the Act

From the High Court judgement it transpires that Ms. Panda and the two others were arbitrarily subjected to prosecution under the Act, which is an extremely stringent law, by the police that sloughed over the core condition laid down under the Act as “a very salutary safegurad” against arbitrariness and despite that the JMFC had taken cognizance.

Let us focus on this.

The police was certainly under pressure – probably to demoralize Sabyasachi Panda – to arrest and incarcerate Mili Panda, without bothering, if thereby the Act was to be contravened.

Sans pressure, the police could not have acted against the Act the way it has in Mili Panda case.

In this case, we see, the core provision of the Act, which, in fact, is the prerequisite for Courts to take cognizance under the Act, was completely ignored, so rash was the police in its steps to torture Ms.Panda and her two compatriots (hereinafter Ms. Panda for the sake of convenience in expression).

And, perhaps the court was under pressure. The pressure was, perhaps, very overwhelming. So overwhelming that, the JMFC was not able to refuse to take cognizance, even though the core provision of the Act does not allow such cognizance to be taken by any court without fulfillment of the conditionality laid down therein.

Core Condition

The core condition of administration of the Act is laid down under Section 45 that prohibits Courts to take cognizance unless prerequisites are fulfilled.

It stipulates:

(1) No Court shall take cognizance of any offense –

(i) Under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf;

(ii) Under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offense is committed against the Government of a foreign country without the previous sanction of the Central Government.

(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.”

This core condition is conspicuous by its absence than implementation in the instant case.

Legislation against arbitrariness

The Act being a very stringent Act, shrewdly designed to suppress the voices raised on behalf of the oppressed but silent majority, though in appearance made to control the rogues, from the beginning of its implementation, its misuse against innocent people by unprincipled, unscrupulous and exploitive apparatus of the State was alarmingly rampant.

Therefore, whenever any opportunity was available to speak on administration of this Act, as many members of Parliament as were allowed to speak, were castigating the Government for misuse of this Act.

This had necessitated an amendment in the Act to insert a safeguard against its misuse.

In fact, when the Amendment Bill was taken up by the Rajya Sabha, the Home Minister, while answering the debates, had to admit that it was not possible on his part to reject the allegations of misuse of the Act.

He said that the executive government registering cases under the Act “through a police officer”, misuse of the Act is possible as and when the executive government becomes “vindictive”. Hence, the amendment was conceived as “a very salutary safeguard” against arbitrariness in prosecution under the Act, he had said.

“Finally, Sir”, he had told the Rajya Sabha, “we have incorporated a very salutary provision. To the best of our knowledge – I don’t know, I may be corrected by the Law Minister or the Law Secretary later – it is the first time we are introducing this.

“In a prosecution under the UAPA, now, it is the executive Government which registers the case through a police officer. It is the executive Government which investigates the case through an investigating agency, namely, the police department. It is the executive Government which sanctions U/s.45. Therefore, there is a fear that a vindictive or a wrong executive Government could register a case, investigate and sanction prosecution. There is a fear.

“May be, it is not a fear that is entirely justified but you cannot say that it is entirely unjustified.

“So what are we doing?

“The executive Government can register the case because no one else can register a case. The executive Government, through its agency, can investigate the case. But , before sanction is granted under 45(1) we are interposing an independent authority which will review the entire evidence, gathered in the investigation, and then make a recommendation whether this is a fit case of prosecution. So, here, we are bringing a filter , a buffer , an independent authority who has to review the entire evidence that is gathered and, then , make a recommendation to the State Government or the Central Government as the case may be, a fit case for sanction.

I think, this is a very salutary safeguard . All sections of the House should welcome it. This is a biggest buffer against arbitrariness which many Members spoke about. Sir, these are the features in the Bill.”

By adopting the Bill, the Parliament approved the legislative intention thus spelt out by the Home Minister.

Hence, for the police to register any case under the Act and for any Court to take cognizance thereof, the prerequisite is fulfillment of the core condition i.e “sanction” of the concerned Government given within a “prescribed time” for institution of the case on the basis of “recommendation” made “within such time as may be prescribed” in favor of the case by “an independent executive” created as “authority” for the purpose, after “making an independent review” of “the evidence gathered in the course of investigation”.

In the case of Ms. Panda, this prerequisite was totally ignored. Yet, the Banpur JMFC could take cognizance!

Attempts to hoodwink the High Court

The Government was so intrinsically involved with the arbitrary prosecution of Ms. Panda, that, when the order of cognizance was challenged, the prosecution tried to mislead the High Court by projecting one A.M.Prasad, claimed to be “Special/Additional Secretary of Home Department” as the authority who had reviewed the evidence as required under Sub-Section (2) of Section 45 of the Act and had “recommended approval of the prosecution”.

Records of the High Court show that the State had produced a letter dated 24.2.2011, containing an extract taken from File No.PIC/1 (Pro) 93/2011 which contains the “review notes” of Prasad, the Special Secretary/Additional Secretary of Home Department.

The number of the file indicates that it was created in 2011. How then the so called review notes of Prasad could pave the way for government sanction in 2010? And how is it that the Government could not specify as to whether Prasad was the Special or the Additional Secretary, because the two posts are distinctly different in the level of rank; the Special Secretary being higher in rank than the Additional Secretary and one officer cannot be of two ranks at the same time under the same department.

So, obviously, the authenticity of the so called review notes communicated to the High Court was stage-managed to hoodwink the Court.

But, it seems, the court refused to be hoodwinked.

From its judgement delivered on 19 October 2011, it transpires that on query, the Court found that Prasad was not the “authority” to “review” the evidence. He was not appointed to review the evidence and to make the recommendation for prosecution against Ms. Panda under the Act.

The Court “asked” the Additional Government Advocate (AGA), representing the State of Orissa “to produce any document/order of appointment” of Sri Prasad “issued by the appropriate authority, appointing him as the ‘review authority’ under Section 45(2) of the Act”. And, the Court notes, “To this query, learned AGA fairly responded that, no such formal appointment order appointing the Special Secretary for the purpose of reviewing cases under Section 45 of the Act is available on records. To a further query of the Court as to whether the State have prescribed any time limit for the purpose of producing such report by the reviewing authority, learned AGA for the State also responded in the negative”.

Cognizance quashed

It was clear to the Court, from the answers to its queries by the AGA, that, the State had not “appointed” any appropriate person “as the authority for the purpose of carrying out an independent review as required under Section 45(2) of the Act” requiring him to furnish his review report and recommendation within a “prescribed” “time limit”. The “very salutary safeguard” the Parliament had created for saving the citizens from concocted cases contrived by “vindictive” executive Government and, in the words of the Home Minister in spelling out the legislative intention behind this provision, “the biggest buffer against arbitrariness” in prosecution under the stringent Act, was thus absent when the Banpur JMFC had taken cognizance of the case filed against Ms. Panda.

This makes it absolutely clear that the prerequisite for taking cognizance of the case was absent and the cognizance taken in the Banpur Court was ultra vires.

On this ground and on decisions in various cases relied upon, Justice Indrajit Mohanty quashed the cognizance taken by the lower court, “forbidden” as it was by the Act from taking cognizance in absence of valid “sanction order” based on valid “review of evidences gathered in course of investigations” by a validly “appointed” “authority”.

He quashed the cognizance on the ground of non-adherence to the mandatory prerequisite. To quote the judgement,

“In view of the conclusions/finding reached hereinabove, this Court is of the considered view that, no cognizance could have been taken against the petitioners in the absence of any valid sanction of the prosecution and in this regard, although sanction for prosecution had been obtained, yet the same was not based upon a review by a validly appointed authority to carry out “independent review of evidence” obtained in course of investigation. Therefore, the very foundation for obtaining such sanction being not in consonance with law, the order of cognizance dated 16.7.2010 passed by the learned J.M.F.C., Banpur in G.R. Case No.16 of 2010 ought to be quashed and this Court directs accordingly.

Insofar as the other contentions as noted hereinabove are concerned, this Court is of the view that the same need not be dealt with in the present case, since the order of cognizance has been quashed”.

Cognizance quashed, the case stands quashed in the Court of the the Ad hoc Additional Sessions Judge (FTC) Kurda also, as it is a case commenced on commitment on the basis only of cognizance taken.

Hence the case against Ms. Panda does not exist since 19 October 2011. But anarchy does not end.

Quashing of cognizance not enough

When the case does not exist after quashing of the cognizance, it is surprising that the crime branch of police has filed a supplementary charge-sheet against Ms. Panda under claims of fresh evidence stumbled upon.
“At the time of submission of the charge-sheet earlier, we had informed the court that the case was open for filing of supplementary charge-sheet under section 173 (8) of Cr.PC,” claims the prosecution. But, how does a Court entertains this claim when the case has no life after quashing of the cognizance?

Shenanigans

Had the JMFC of Banpur not taken cognizance, the case created against Ms. Panda in the Police Station could never have had a judicial life. So, on extermination of the said cognizance by the High Court, the life of the case has already been extinguished.

It is now nothing but a dead case.

It is a case that no more exists for judicial purpose.

How then does a Court entertains the so-called supplementary charge sheet and how does a government dares to play on the corpse of the case by pumping into its file post extermination sanction orders?

Shenanigans point out how anarchic is the government’s game with the law.

Marking their own defects in course of hearing in the High Court, they had tried to build up a sound cognizance of the same case at Banpur by presenting a supplementary charge sheet with a second sanction order. Yet it not being fault free, they superseded the 2nd sanction order and produced a 3rd sanction order with which a second supplementary charge sheet was filed before District Judge, Kurda at BBSR.

Why is it being entertained is a conundrum.

Clamant questions

The Judiciary ought to have tried to find out as to why the government is so motivated against Ms. Panda? Why the government is not behaving as a impartial government in ensuring rule of Law? Why it tried to hoodwink the High Court with a stage-managed sanction order and why it, thereafter, tried to vitiate administration of the Act with a second sanction order on projection of a supplementary charge sheet and when that failed to click, why have they been allowed to “supersede” the second sanction order and to file a third sanction order supporting a second supplementary charge sheet? Does the Act equip the police or the Government with any carte blanche to manufacture such sanction orders and supersede one by another to suit its nefarious design? Is it not killing of the spirit of 45(2) inserted into the Act as “the biggest buffer against arbitrariness”?

Contempt against rule of Law

The government conduct is so vitiated with contempt against rule of Law that quashing of the cognizance notwithstanding, prison bars continue to debar freedom to Ms. Panda. And, to keep the bars further tightened, unfounded allegations are being shut in a Court at Gunupur aimed at transforming Ms. Mili Panda to a mysterious Sima, claimed to have played a role in Naxal-Police encounter in 2003, despite the fact that the said encounter case was so very concocted that all the six accused that had been subjected to humiliations of under-trial life, have been acquitted on hearing.

In attempt to victimize Ms. Mili Panda in the Gunupur case, formalities falling within the frame of 173 (8) of Cr.PC were not observed. To hound her, steps also are taken to entangle her in a case of 2008 armory loot in Nayagarh.

Sinister motive

We see in her prosecution the reflection of sinister motive of the British trade based Government in prosecution of freedom fighters of India.

And, there is no doubt, that more and more numbers of Indian patriots will be prosecuted like this as the country is now under the grip of traders with democracy shrewdly transformed into plutocracy.

Both the political and executive governments being in nexus with traders and exploiters in a plutocracy, patriots who would act against the nexus, will certainly be subjected to false cases in increasing numbers.

Judiciary need be more responsible

So, Judiciary shall be looked at as the only refuge for seekers of peaceful life for self and society. In such circumstances, Judiciary need be more responsible than how it acted in taking cognizance against Ms. Panda.

The false and concocted cases may ultimately end in rejection due to the wisdom of Judiciary in higher to highest level. But by then, unless the “buffers against arbitrariness” as created under the Act are strictly adhered to in lower judicial level, people like Ms. Panda will be suffering the ignominy of imprisonment on wrongful cognizance of the cases. So, essential need is, not the quashing of wrongful cognizances alone, but also elimination of judicial blunder in taking cognizance, by way of punishment if necessary.

Judiciary in every level will have to be more responsible if rule of Law is to prevail.

TAX EVASION TRICKS EXPOSED: PETITION PRODS ORISSA HIGH COURT TO PROTECT ITS OWN JUDGMENT

Subhas Chandra Pattanayak

Orissa High Court, in a writ petition, has been urged upon to protect its own order that had directed the Civil Courts specifically the Civil Judge, Bhubaneswar to determine and collect correct amount of Court fees as a prerequisite to proceed in cases of civil nature. The Bhubaneswar Court is allegedly killing its spirit

Order 7, Rule 11. CPC is a provision to reject the plaint if the suit is not properly valued or required Court-fee is not paid.

The Orissa High Court, in deciding Nandakishore Nayak and two others versus State of Orissa case in C.R.P. No. 268 of 2002 on 21 February 2003, had made it absolutely mandatory by defining the word ‘rejection’ as ‘refusal of admission’. According to it, the provision, “in other words” meant, “the plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of Court-fee in accordance with law”.

The High Court had underlined that the District Judge, specifically in respect to Bhubaneswar, where value of land is as high as tricks to evade Court-fees, must see that the judge’s discretion to pick up his Sheristadar does not end up in wrong choice.

The Sheristadar, in who the responsibility to “check the plaint prior to place the same before the Bench for admission” is vested, must ensure that the plaint is properly valued and correct amount of court fee collected. To wipe out possible failure, the civil judge must make his Sheristadar receive reorientation training on how to arrive at correct amount of the court fees and to ensure that proper valuation of property and collection of correct amount of court fee remain prerequisite to proceeding of the case. Thus saying the High Court had made it clear that dovetailing the civil suits to correct quantum of Court fees is “not only the duty but also the responsibility of the District Judges”.

The issue was treated with such exemplary judicial concern against court premises becoming breeding grounds of tricks to evade court fees that the Judge thought it prudent to note, “in the event of failure, the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges”.

Bhubaneswar Civil Court has shown scant regards for this judgment, petitioner before the High Court, Mrs. Asharani Mishra has alleged.

In a title suit, property worth several crore of rupees has been shown valued at around rupees one lakh only and, even after objection on valuation ground was legally raised by her, the process of law has been abused to accept many hundredth time less Court-fee, she has shown the High Court.

The most intriguing part of the proceeding in the civil court is that when the case was posted for objection if any on the objection she had raised against the reduced valuation of her ancestral property and the party involved having no objection, the higher value that she had mentioned was supposed to have generated higher revenue for the State, there was a “stage-managed acceptance of duty money on the basis of premature assumptions on valuation”, which according to the petitioner, was a stark instance of under-valuation.

This position being challenged in the High Court, in W.P.( C ) 8077/2008, it was disposed of with observations that in view of the order cited supra, if the objection regarding valuation of the property is raised, “the same will be dealt with by the learned District Judge in accordance with law”.

And, the law stipulates that the suit must be “rejected” if the same “is not properly valued” and “shall not be admitted” “if there is defect in valuation or non-payment of Court-fee in accordance with law”.

But, the District Judge, Khurda at Bhubaneswar, has decided to proceed with the suit notwithstanding objection to valuation raised after the High Court verdict, the petitioner has told the High Court.

According to the District Judge, the case having been posted for hearing on acceptance of an amount of duty money, the case is to proceed pending finalization of the correct amount at the stage of final hearing.

The petitioner has placed before the High Court that this order is bad inasmuch as it has expressed reliance on an “illegal order i.e. the stage-managed acceptance of duty money on the basis of premature assumptions on valuation” and “is capable of pushing the case from this illegality to another phase of illegality”.

The issue raised is “whether the District Judge can slough over / disregard / disobey the guidelines issued by the Hon’ble High Court in the year 2003 and can proceed with the case without realizing the correct amount of duty money as per the valuation on records”.

It has further begged the High Court to intervene to set the case clear of the misleading term “final hearing”, which is not defined in law but is capable of abusing of the process of law.

If Mrs. Mishra wins, it will be a gain of at least Rs. 7 lakhs for the State exchequer where as the Civil Court has accepted duty money worth only Rs.5 thousands. The negligence of Orissa officers as well as the government advocate has contributed to this loss of revenue.

Hence, Mrs. Mishra has prayed the High Court to issue orders to the Government not to neglect financial interest of the State in the instant case.

The case has been admitted under W.P.[C] No.3495/2009. Eminent lawyer Dhruba Charan Mohanty of Bhubaneswar is representing the petitioner.

RAM SINGH MUNDA DESERVES REWARD, NOT PUNISHMENT

The frazzled world needs many Ram Singh Mundas. Let the Administration not ruin the only Ram Singh Munda available at present.

Subhas Chandra Pattanayak

Ram Singh Munda has gone back from Bhubaneswar to his village in Keonjhar with the feeling that peoples of Orissa love him and totally appreciate his humane nature and the way he has nurtured Rani by rescuing her from the grip of death.

But he may go back to Jail if a mentally dull officialdom in the lower level of Orissa’s Forest Department is not discouraged from wild use of the Wildlife Protection Act against him in total disregard to the noble qualities the innocent tribal personifies.

Released from Jail on bail, he had rushed from his village Rutisila under Ghatagaon Block of Keonjhar on June 27 to Bhubaneswar to meet Rani in Nandanakanan zoo. His six-year-old daughter Dulki, orphaned by her mother, had also accompanied him.

Who is Rani?

The entire learned world by this time has known her. She is a bear cub, rescued around eighteen months ago from the grip of death while lying abandoned and dehydrated in the Jungle. Ram Singh Munda had given life to the hopeless cub by bottle-feeding her curtailing his daughter’s food out of sheer compassion and had adopted her and given her the name and had given her the comfort she so badly was in need of then to survive. A widower, rearing his baby daughter, Ram Singh knew the agonies of a motherless child and hence he knew how to take care of Rani. By limitless love, he had convinced her that she was neither orphaned nor abandoned.

When he visited Nandankanan the scenario that suddenly manifested was to be seen to believe.

Rani, thrown into an isolated enclosure by forest officials, refusing to receive food and lying dejected, in a fraction of a second danced in delight as Munda knocked at the wire walls of the enclosure and the moment was so emotionally surcharged that the officer in-charge present on the spot could not know that he was defying the rules of the zoo as he ordered his men to open the gate and allow Munda the pleasure of the bear’s grateful hugs.
It was a rare reunion of a father (the man) and a daughter (the bear) the like of which the world has never seen so far in real life.

This establishes beyond doubt that Ram Singh Munda had not only rescued the bear cub from grip of death, but also had reared it as a father rears a motherless child.

It also establishes that Rani is not at all wild. Use of Wildlife Protection Act against this man who is nothing but a protector of wildlife exposes how mentally dull is the officialdom in lower level of forest department.

Why Ram Singh Munda was in the jail?

Ram Singh Munda, a tribal and a natural lover of the forests, had developed a fancy to dress up like a forest guard. But private use of Khaki not prohibited in Laws and the dress he was using not being the uniform, the local staff of forest department was unable to stop him, even though, that was bruising their official ego. On the other hand, people of the locality were making fun of the forest guards comparing them with Ram Singh Munda, as to them, though not in government service, he was a real lover of forests than the local foresters who were drawing salary from the state exchequer but hobnobbing with the jungle looters. They were morally shying at Ram Singh but internally waiting for opportune time to smash him.

The highly rich flora and fauna of Keonjhar District are no more discernible. For such a deplorable deterioration of the once enviable eco-system, though frazzled by authorized and unauthorized mining, in public perception the responsible factors lay in the deficiency and deliberate dereliction in duty coupled with corruption in the lower offices of forest department. So the low rank forest officials were in search of something that may project them as active and sincere in their duties.

Ram Singh Munda’s association with the bear provided them with the solution.

By catching hold of Ram Singh Munda and sending him to the heartless zone of law where jailing some one without complete assessment of an allegation is a privilege, the forest officials of the concerned area have in their own way built up a showcase in their support.

They have charged him for contravention of Sections 2(16) / 9 / 39(3) / 40 and 42 of Wildlife Protection Act, 1972.

Let us take a cursory note of what mischief these Sections are up to.

Section 9 says, no person shall hunt any wild animal specified in Schedule, I, II, III and IV except as provided under section 11 and section 12 as amended when Sec.2 (16) defines “hunting” as “capturing, killing, poisoning, snaring, and trapping of any wild animal and every attempt to do so”. When Sec.39 shows wild animals as government property, sub-sect.3 thereof at cl. (a) discourages a man to “acquire or keep in his possession, custody, or control” a wild animal sans prior permission of the Chief Wildlife Warden or his authorized officer. Section 40 under sub-section (2) repeats almost the same thing as it prohibits everybody to “acquire, receive, keep in his control, custody or possession any animal specified in Sch. 1 or Part 11 of Sch. 11 except with the previous permission in writing of the Chief Wildlife Warden or the authorized officer”. And, Section 42 gives power to the Chief Wildlife Warden to issue, for the purposes of Sec. 40, “a certificate of ownership in such form, as may be prescribed, to any person who, in his opinion, is in lawful possession of any wild animal”.

If anything, prosecution of Ram Singh Munda under these provisions is most farcical of law.

Firstly he has not “hunted” Rani. He has “rescued” Rani from the grip of death. And rescuing an animal is not illegal under Section 9.

Secondly, he has not “acquired” Rani. He has “adopted” Rani as his child. Adopting an animal is not illegal within the mischief of terms used in Sections from 39 to 42 as shown above.

Thirdly Rani is not a “wild animal” and hence sections 39, 40 and 42 are of no force in the instant case.

The term “wild animal” is defined under Sub-Section 36 of Section 2 of the Act.
Accordingly “wild animal” means any animal found wild in nature” If the animal is not “wild in nature”, the words “any animal specified in Schedule I, Schedule II, Schedule, IV or Schedule V, wherever found” added thereto would not apply as the same is a mere qualifying extension of the concept centering around the term “wild in nature”. Rani is never “wild in nature” and hence, these sections are not applicable against Ram Singh Munda.

That Rani is never “wild in nature” is proved by the very fact that when the forest officers who are prosecuting Ram Singh Munda transported her to Nandankanan zoo, they had never administered any tranquilizer on her. In full public gaze, she had accompanied them like a very good-natured human being assuming that those two-legged animals might be as good and noble as Ram Singh Munda.

But all two-legged animals are not humane.

However, if the law enforcers do not believe their own agents who took Rani from Ram Singh Munda’s house to the zoo at Nandankanan without experiencing in her any “wild nature”, they may peruse this much-circulated pictures afresh.
Do they find this bear rescued from death and adopted as a daughter by the kind-hearted tribal as an animal “wild in nature”?

Prosecuting Ram Singh Munda, the way they have done, betrays their own deficiency in understanding the spirit of Law. The law was framed for “protection” of wildlife, not for prosecution of a protector of wildlife.

Members of civil society feel ashamed of what officialdom in Orissa has done to a man who deserves rewards and honors of highest order for the noble and exemplary contributions he has made to humanitarianism.

The sections cited supra under which the forest officers are prosecuting Ram Singh Munda do never impose prohibition even on “acquiring and keeping” wild animals. Anyone can do it with prior or post-facto permission from an authorized officer. The authorized officer may grant the permission in fear of power or in getting his palms greased. Except these two unwritten but possible propellants, there is no definite description of circumstances in the body of these Sections that should necessitate issuance of permission. Therefore these Sections are infested, despite amendments, with inbuilt legal lacunae. But when administration relies on these Sections and the person relying on these Sections is not influenced by power or purse, it is clear that he uses his administrative wisdom in granting permission to acquire or keep wild animals. So law has not prohibited acquiring or keeping wild animals but has only stressed on invocation of discretionary powers of the officer concerned in the matter.

If officialdom is not prejudiced, it should appreciate that Ram Singh Munda has “protected” the life of the bear cub and is not guilty of any crime as there is no criminal intension behind rescuing the bear cub from sure death and upbringing it like his own child. In appreciation of this reality, the Chief Wildlife Warden or the officer authorized by him can invoke with retrospective effect the discretionary power vested in him in the above mentioned Sections and condone the delay in approach for permission and grant the same to Ram Singh Munda with retrospective effect to regularize this uncommon but welcome act of man’s responsibility towards animals. Far from being illegal, it will fetch unreserved appreciation of the world.

Available scope

According to the Divisional Forest Officer of Keonjhar, the case against Ram Singh Munda, propelled by the above mentioned Sections, is under further investigation and what other Sections may be invoked against him would depend on that. As such, admittedly, the charges are not finally framed. This gives a scope to not frame the case against the poor but upright man.

Everybody knows that cases are built up, evidences are cooked up and charges are framed up when officialdom decides to harass any upright person. Let this not happen this time.

Wildlife protection Act is a central law that exists in English language. It has never been translated into Oriya and available to peoples like Ram Singh Munda. The officers of forest department who are prosecuting him for having kept the bear cub have never tried to make him and peoples of his category aware of this Act. So, use of this Act against the innocent illiterate man is an act against natural justice.

On the other hand, reports coming from the locality reveal that in the presence of the peoples of the area including local forest officials, Ram Singh Munda had left Rani in the jungle twice in order to give it her natural habitat. Both the times, she had come back to his home. So it is clear that the bear was staying freely with Ram Singh for around eighteen months well within the knowledge and with tacit approval of the forest officials; and more importantly, on its own accord after being released to the jungle in presence of the peoples and forest officials. And, forest officials know this.

If under exigencies of circumstances, they deny this, then they should react to the highly circulated picture displayed supra.

It shows, he was moving the local area in his cycle with Rani clinging to his back. His village of Rutisila under Ghatagaon is a small rural habitat where everybody knows everything that happens in the locality within no time. So, the bear clung to Ram Singh Munda during his bicycling on the local roads must have attracted everybody’s attention including that of the forest officials. It must have taken months together for the bear and her foster father to master this practice. If any forest officer of the said locality says he did not know of this, then he is a liar or is mentally dull. If not, then it is clear that the bear was staying with Ram Singh Munda for all these days under full knowledge of forest officials and their non-intervention so far must be inferred as their full approval of the bear’s stay with Ram Singh Munda. Therefore, the present prosecution is a foul play against the spirit of law and is vitiated with unworthy and inhuman motives.

So, looked at from any angle, there is no real case against Ram Singh Munda. An honest judiciary will never find him guilty. The Wildlife Protection Act never vouches for any prosecution against him for having rescued, saved and adopted the bear cub found abandoned in dying condition in the forests and for bringing her up from infancy to adolescence in a healthy state with all the love and care a man, despite abject poverty, could ever have given to an infant animal, the like of which has never occurred anywhere on records so far in the entire world.

We, the people of Orissa have every reason to be proud of Ram Singh Munda, the simple natured hero who has shown how humane can become a man.

The forest department should not make an animal of him.

Ram Singh Munda is a rare person in the showy jungles of Ramadevs and Ravishankars and innumerable Godmen and innumerable Gods in whose favor propaganda of humanitarianism is cultivated and amplified.

Ram Singh Munda is personification of silent sacrifice and humanitarianism, of selfless service and compassion.

He is simple in nature and innocent. Though illiterate, he is the finest embodiment of positive thinking and qualities that make man the best amongst living creatures.

Enough damage has been done to him by the mentally dull officialdom who could never feel how devastative it would be to his six-year-old motherless daughter by beating up and arresting him before her eyes as if he had committed the heinous most crime by saving an infant animal from the grip of death!

No further damage the civil society would silently tolerate.

There are officers in the higher echelon of forest department whom I know as excellent and dedicated lovers flora and fauna. I earnestly hope, they will review this case and stop the misadventures of avoidable litigation against a man who is being harassed for his love for the animal world.

Talking to Sri Pradeep Raj Karat, DFO of Keonjhar, I have gathered the impression that as an officer he is perhaps not prejudiced. It would not be too much to expect that he stop his lower office from framing up cases against the financially poor but temperamentally magnanimous man who has made so much sacrifice from his scant resources for saving the life of an infant bear and thereafter to rear her up.

It would be better, if by withdrawing the prosecution, the forest department could honor Ram Singh Munda for exemplary compassion shown by him to an animal in distress.

The wrong done to Ram Singh Munda should be rectified this way.

The frazzled world needs many Ram Singh Mundas. Let the Administration not ruin the only Ram Singh Munda available at present.

CROWNING CORRUPTION: PROMOTION TO IAS SMACKS OF MANIPULATION

Subhas Chandra Pattanayak

If the judgment of the Supreme Court of India delivered on 04 August 2006 is not wrongly read, it would make it crystal clear that, the last promotion to Indian Administrative Service (IAS) from Orissa Administrative Service (OAS) cadre was guided not by principles in force but by extraneous considerations.

It is astonishing that Chief Minister Naveen Patnaik, who has shown uncommon agility in dropping any of his ministers on allegation of corruption, is yet to act against the corrupt coterie with the help of which the illegally promoted persons are still drawing the salary they are not entitled to and still enjoying the status they are not qualified for.

I do not think that Naveen Patnaik had any personal role in the promotion that has now been stamped as illegal finally by Supreme Court. But when the State does not rise in right response to observations of the Judiciary to correct the wrong it has perpetrated, he being the holder of the portfolio, who should explain the position?

Let us look at the position from the corridors of the Supreme Court.

Mr. J. P. Agrawal had gone there seeking nullification of an order of the High Court of Orissa. The Supreme Court refused even to admit the case.

Who is J.P.Agrawal?

He is Jagdish Prasad Agrawal, an OAS officer illegally elevated to IAS. In disapproving his promotion to IAS, the Central Administrative Tribunal (CAT) had expressed concern over the use of administrative machinery to suppress vital facts about punishment awarded to him for misconduct in the memorandum prepared for the Departmental Promotion Committee (DPC). The CAT action, on challenge, had been endorsed by the High Court.

But Agrawal was not the only one whose promotion to IAS smacks of manipulation. We may look into the matter to have a cursory view of how corrupt have become the higher echelon of Orissa bureaucracy.

In 2002 eight officers of OAS were selected to IAS. But the most suitable officers were discarded in favor of the deficient ones.

This was challenged by Shri Aswini Kumar Das, presently the Collector of Puri and Shri Pramod Chandra Patnaik, Collector of Nuapada before the Central Administrative Tribunal in O.A. No.2/2004.

The crux of their allegations was that these Officers were promoted to the I.A.S. without evaluation of their suitability on the matrix of their complete Service Records and notwithstanding the adverse entries in their Confidential Character Rolls (C.C.R.) and the punishments imposed through disciplinary proceedings. It was specifically alleged that Shri J.P.Agrawal and Shri Satyananda Sethi had got punishment in disciplinary proceedings, but this fact was suppressed. Similarly, when there was a question mark on the integrity of one officer and such adverse entry was not counter balanced by the prescribed authority i.e. the Chief Secretary, he was also selected. Shri Balakrishna Sahu having adverse entry in the C.C.R. and having been superseded in promotion to Senior Class-I and later to Joint Secretary rank, also got selected whereas the two petitioners, Mr. Das and Mr. Patnaik, having unblemished Service Records and ‘Outstanding’ grading for continuous five years were discarded.

Baffling it is that on consideration of the same bunch of C.C.Rs i.e. from 1996-97 to 2000-2001 Mr. Patnaik, who, having continuous Outstanding remarks therein, had superseded others in promotion to the rank of Additional Secretary, was rejected for promotion to I.A.S.whereas the superseded officers bagged the promotion.

Out of the eight officers selected to I.A.S., only three officers had outstanding CCRs for five years and the rest five had no such distinction though one of these five, Raj Kishor Jena, who got the promotion had acquired outstanding remarks only for three months. It is surprising that these five officers have superseded Das and Patnaik who have been continuously placed in outstanding grade for five years and have always been considered unblemished.

On being apprised of this, and on the basis of documented pleadings, the CAT concluded in O.A. No.1255/2003 that the punishments inflicted on Shri J.P.Agrawal did not find place in the A.C.R. folder, as a result of which the Selection Committee did not get opportunity to be aware of such blemishes against any recommended persons. Mentioning about “startling facts” that revealed in course of hearing how some of the selected Officers did not enjoy blemishless career, the CAT had underlined that the Officers to be selected to I.A.S. should be beyond suspicion like the Ceasar’s wife. And, for this, the Selection Committee should review the C.C.Rs of at least eight years instead of five. But, if an Officer is graded as ‘Outstanding’, his entire service career should be scanned to ensure that his categorization as ‘Outstanding’ can never be questioned on the ground that in the past he did not enjoy blemishless service records. Therefore, the whole selection List was quashed and a review meeting was ordered for.

This order was appealed before the Orissa High Court by Shri Jagdish Prasad Agrawal in W.P. No.13445/2005 and Shri K.C.Mohapatra in W.P. No.13153/2004. A Bench consisting of the Chief Justice and Justice Madan Mohan Das upheld the above judgment of the Tribunal with a modification to the extent that the Selection Committee should see the C.C.Rs of Officers for past five years instead of eight. They relied on the judgment of the Supreme Court in the matter of Shri R.K.Das Vrs. Union of India (AIR 1987 SC(593), in which it has been stated that the Committee has to categorize the members of State services on the basis of entries available in their Character Rolls and thereafter to arrange their names in the proposed List in accordance with the principles laid down in Regulation 05. This was mandated to eliminate every possible scope for discrimination through application of different standard or criteria at different times for preparing the List.

Mr. Agrawal had gone against this Order of Orissa High Court.

After refusal of the Supreme Court to interfere with the Verdict of the Orissa High Court, it has been crystal clear that when the eight OAS officers were selected to IAS in 2002, the State Secretariat had been transformed into a breeding place of favoritism and clientelism and the selection was made in stark disregard to administrative impartialism.

As I look back, P.K.Mohanty, the then Chief Secretary, Srinibas Rath, the then Development Commissioner and Arun Kumar Panda, the then R.D.C.- all from Orissa and Gurbachan Singh, Member of U.P.S.C. assisted by Union Joint Secretary S.Jagadeesham comprised the Committee.

They were the senior most members of the bureaucracy. How could they prefer evidently deficient officers to the officers who had been graded ‘outstanding’ for continuous five years in their transparently blemish less service careers? They cannot say that they had not violated administrative acuity in order to select the unsuitable persons they selected. Now they should be asked to say as to why did they do it.

Had they gone through the list of Officers under the Zone of Consideration, Mr. Aswini K. Das and Mr. Promod Chandra Patnaik, the two most suitable officers, I am sure, would never have been discarded. But they did not do it. The Orissa officers did not help the U.P.S.C. and the Union Government in evaluating the suitability of the Officers concerned.

After the CAT verdict the State Government had known that a wrong has been done. It was the duty of the State Government to take correctional steps. But it did not act in that respect. Mohanty, relinquishing the Chief Secretary post has been awarded with the more coveted post of Chairman of Orissa Public Service Commission.

But the two most brilliant and outstanding officers are languishing in the State service cadre whereas the State Exchequer is being exploited for paying them the salary packages applicable to a cadre to which their illegal entrance has been declared null and void.

The State is under Peoples’ Representatives. Hence the authority above the Chief Secretary is the Chief Minister. If he has not compelled the Chief Secretary ( P.K.Mohanty as then he was) and his team in the Committee to supersede the most suitable officers by the tainted ones, in this case, he must take steps to punish this fellow for having corrupted administration as discussed above. Steps need be taken to determine the corrupt practices resorted to by each of the members in the concerned Committees in suppressing vital facts and in sloughing over the guiding laws.

The Constitution of India has created Public Service Commissions for only one purpose. That is elimination of favoritism in selection of Union or State Service Officers.

Any violation of this purpose is an offense against the Constitution.

Hence I expect the Chief Minister to understand that it is his duty to bring every offender in the instant case to books as an example of responsible parliamentary rule, and most importantly as a deterrent to any such manipulations in future.