Disastrous situation of Functioning of Ombudsman in Odisha

Disastrous situation of office of 
Ombudsman functioning under MGNREGA in Odisha and Physical harassment and mental torture of an Ombudsman by inept bureaucracy in Ganjam district

On 23.3.15, Sri Sadanand Rao, retired OAS officer who has been appointed as Ombudsman in Ganjam district  by the Govt. of Odisha on 28.11.13 to conduct enquiries  into complaints  and grievances  of the daily wage workers under MGNREGS (Mahatma Gandhi National Rural Employment Guarantee Scheme) filed a complaint to National Human Rights Commission (NHRC), New Delhi stating that after his appointment as Ombudsman, no facility of accommodation  in the DRDA office, vehicle, complaint Box,  administrative support staff  had been given to him.  The Ganjam DRDA Authority had not disbursed the legitimate sitting fees / remuneration of Ombudsman. He has been harassed physically and tortured mentally by the officials of DRDA, Ganjam. He has sought intervention of NHRC to dispense justice to him. Acting on his complaint, NHRC issued notice to the Chief Secretary, Odisha on dated 8.4.2015   seeking response on the Complaint filed by Sri Rao (Case No. 2210/18/5/2015).

It deserves to be mentioned here that Sri Rao has also written a letter in April 2014 to the Secretary, Ministry of Rural Development, Govt. of India complaining about denial of sitting fee/ remuneration to him and non-supply of administrative support staff to function independently. The MORD wrote letter twice i.e, dated 7.5.14 and 19.6.14 (D.O. No. L- 11033/10/2010-MGNREGA-VII) to the Secretary, Department of Panchayat Raj, Govt. of Odisha seeking action taken Report  stating  that “Non-payment of sitting fees  to an Ombudsman is a serious matter and may severely impact  the Grievance Redressal  Mechanism under MGNREGs”. But astonishingly, the State Govt. did not respond the letter nor did provide any action Taken Report.

Abysmally failed to get justice, Sri Rao, Ombudsman approached NHRC seeking Justice. The NHRC is yet to get ATR from the State Govt. and continue to fix so many dates for hearing and disposal of the cases.  Now,  on capacity  as Advisor to NHRC, I have sent a letter dated 12.11.15 to NHRC  seeking immediate disposal of the  said  case and provide justice to Sri Rao who is fighting for justice  since his  joining  as Ombudsman  from Nov. 13. It shows that how  the District Administration of Ganjam is creating all sorts of problem and harassing him a lot and pressuring him tol leave the post.

What is Ombudsman?

Ombudsman is an Institution formed  under section 27  of MGNREGA  consisting of one or  up to  three persons  functions  as an independent  grievance  redressal body  at district level  to hear the complaints relating to implementation of NREG Act and schemes made under the Act, direct the appropriate authority for redressal, disciplinary and punitive action against erring officials  involved in corruption  ad irregularities in NREGS work and dispense justice to NREGS worker. The Tenure of Ombudsman is  two years and may be extendable upto  one year by the selection Committee headed by Chief Secretary keeping in view the performance of the Ombudsman. The sitting fee   of Ombudsman is  fixed as Rs. 1000.00  per day.

The Process of appointment of Ombudsman started in Feb 2010  after  the order of the Central Govt dated 7.9.2009. Following the guideline issued by the Central Govt.,   the State Govt.   ensured appointment of Ombudsman  in almost all districts  in 2010 -11.

Present situation of Ombudsman in the Districts

On 9.2.15, RTI Application was submitted to the PIO, Department of Panchayat Raj, Govt. of Odisha seeking information about details of status of Ombudsman in Odisha.  RTI Application was forwarded to all the districts to provide the information. In the meanwhile, only 10 districts have provided the information.  These districts are Baragarh, Bolangir, Rayagada, Dhenkanal, Kondhamal, Malkangiri, Kalahandi,  Jajpur, Khorda,  Puri.

Details of Response of the PIOs of DRDAs of the different districts  is  as follows-

1.   The post of Ombudsman is lying vacant in all the districts since 2013.

2. The Collector, Baragarh has sent a letter to the Dept. of Panchayat Raj recommending 3 names since August, 2014. But no step has been taken by the Govt. to appoint Ombudsman.

3.  On 30.6.14, the District Collector of Bolangir had recommended three names to the State Govt. for appointment in the post of Ombudsman. But no appointment has been made so far.

4. On 15.7.14, District Collector, Rayagada had recommended two names for appointment of Ombudsman to the Govt. But no appointment has been made in the district.

5.  On 16.8.13, the Collector of Dhenkanal district had sent the name of three persons recommending for appointment in the post of Ombudsman. But the post of the Ombudsman is lying vacant in the district.

6.  No appointment has been made in the post of Ombudsman, Kondhamal.

7.  The post of Ombudsman In Malkangiri  is still vacant  since  29.9.2013.

8.  Since 2014, there is no appointment in the post of Ombudsman in Kalahandi district.

9.  The post of Ombudsman in Jajpur district and Puri district is lying vacant since 2013.

10.On 28.6.14, the Project Director, DRDA, Khorda has sent only one name Bhabagrahi Mohapatra to the State Govt. for appointment in the post of Ombudsman. But till yet no appointment has been made.

11.There is no Ombudsman in Puri district.

Critical Comments

A. The system of Ombudsman is defunct across the state. The Grievances with regard to implementation of NREGA is neither addressed nor  are the NREGA workers  provided their wage payments  within stipulated time period.

B. In the absence of effective grievance redressal mechanism, the huge corruption, irregularities, denial of wages to the workers are noticed throughout the state.

C. Wherever, Ombudsman has been appointed, they are not provided accommodation, office, supporting staff by the administration.  They are also seen being denied their remuneration. The plight of   Ombudsman of Ganjam as mentioned above   is the classic example.

D. This is the conspiracy of the BJD Govt.  to  destroy all forms of  independent  grievance redressal mechanism  in the state  and to let  the corruption  go on.

E. The system of Ombudsman needs  to be restored  at any cost bestowing all the powers  to this Institutions  to function  independently  to provide justice  to  the MGREGA Workers in the State.     

Pradip Pradhan, State Convener

Odisha Soochana Adhikar Abhijan

M-9937843482

Date-13.11.15

Denial of Education of the children in Private Schools in Odisha

Denial of Education, Physical Harassment and Mental Torture to the Children in Private Schools Sai International school and Takshila School located in Bhubaneswar

Private Schools are mushrooming across the state due to deterioration in quality education in Govt. runs Primary schools in Odisha. Though costly, many parents are seen forced to send their children to these so-called English-medium Private Schools.  While visiting many Govt. schools in remote tribal pockets of the state as part of my Citizen monitoring visits, the admission of the children  in Govt. Primary schools are also reducing every year and the parents are sending their children to Saraswati Sishu Mandir, Bibekananda Sikhya Kendra, Aurobindo Shikhya Kendra etc. The increasing dependency of the parents in Private Schools for the education of their children has provided golden opportunity to the  private school mafias to exercise their monopoly  and exploitation by demanding exorbitant price, forcing the parents to agree their illegal and illegitimate demands, mentally harassing the children, in case of any complaints from the parents etc. It has become common practice in high-profile English Medium Schools situated in Bhubaneswar, capital city of Odisha. Many times, the parents do not prefer to lodge complaints against the authority of these schools apprehending that the authority may torture their children in the school.

I present herewith two cases of violation of Rights of the Children in two prominent schools like Sai International school and Taksashila School (Bhubaneswar Model Public School) located in Bhubaneswar.

1.  Srikant Auropratik, S/o- Sri Prakash Nayak, formerly UN Employee, Nepal (M-8763790311), a 9^th class student of Takshila School (Bhubaeswar Model Public School) located at Plot No.- N5/A, 1697, IRC village, Bhubaneswar was denied to continue in Class-IX since  on the ground of poor attendance and low performance after Puja Vacation.  On 28.10,2015, the Authority intimated the parents that the Child would be sent back to Class-VIII. Sri Auropratik was admitted in the school in 2013.  As reported by him, he had been Physially and mentally tortured by the school teachers several times due to the reasons best known to them. However, the parents objected to the decision of the authority of the School and requested them to allow their child to continue in the school. But the Authority remained adamant and the  school education of the child  has been discontinued. In their pursuit to get justice, the parents  have  filed complaint to OSCPCR ( Odisha State Commission for Protection of Child Rights), Bhubaneswar on 9.11.15  stating that as the school does not have permission  from CBSE  for Class-IX, the authority is playing  mischief and not allowing  the students  to study in Class-IX. This has happened to another Studet- Suhismita Nayak of the same lass, she is also disontiued comig to class (Tel: daughter of Saraswati Nayak, 0674-2560277).

2.  Parent of Srikat have also made some serious allegations  against the authority that  due to lack of permission from CBSE, the students of the schools are  asked to give examination in the name of  other schools. The affiliation of the School has been lapsed  since March 2015. All the teachers are indulged in collection of unlawful gratification ( materials, kind) from the students. Also the school has not applied for or obtained” No Objection certificate” ( NOC) from the School and Mass Education Department, Government of Odisha, under RTE. or  “As we never  give anything except Greetings Card on Teachers’ Day, we have been victim of wrath of the teachers”, they alleged. Three teachers, particularly Ms Zonkhana Aand, Ms Meetho Mitra and Ms Shaun Mitra have been passing lewd remark on nationality of parents and physically and mentally harassing for last one ad half year. Realising gravity of the case, Ms. Rajalaxmi Das, Member of OSCPCR has taken the cognizance of the case and issued show cause notice to the authority of  Takshila School for filling response within 7 days.

3.  Sri  Pramod Kumar Das ( M- 9439863163), a dalit father of Sri Om Prasad Das, a student of Class-III of Sai International School, Patia, Bhubaneswar has filed a complaint on 19.9.15 to OSCPCR that the school authority  is not allowing his children  to attend the school.  His child had taken admission on reserved  category of weaker section  as defined under Right to Education Act. As his child is entitled to get education free of cost in the school,  the  school authority,  since admission has been pressuring him  to pay the fees  and demanding huge money  which is unbearable  on his part to pay it. As he could not make payment,  the authority did  not allow  his children to continue  in the school. His school education has been discontinued since last two months. Realising the nature and gravity of complaint and loss of education of the child, the OSCPR registered the case No. 770/OSCPCR dated 4.11.15 and issued direction to the school authority to immediately admit the   child in the school and comply it by 7.11.15. As reported by the parents, the Child was admitted   in the class by  the school authority.

Critical Comments

1. As the Private Schools are harassing the parents and children by demanding illegal exorbitant price,  it is high time to put pressure on Govt.  to constitute  a Private School Regulatory  Body  to  monitor and regulate  all Private  Schools  operating in Odisha.

2. Child Rights Activists of the state should continue  to monitor the cases of violation of child rights under RTE especially in Private Schools.

Pradip Pradhan, M-9937843482

Date- 13.11.15

OPINIONS ON EFFECTIVE COLLEGIUM SYSTEM

OPINIONS OF ODISHA CIVIL SOCIETY ON

EFFECTIVE COLLEGIUM SYSTEM & JUDICIAL REFORMS IN INDIA

India has suffered a series of misrules over the past under autocratic rulers; and the colonial rule being more rude in nature, number of persons from the civil society and mainly, the lawyers community rose up against the colonization spearheading  the independence struggle. And ours is a Parliamentary form of Government where the house of people remains the supreme in policy making but scrapping the NJAC Act by judicial pronouncement on 16 October 2015, has become intolerable for a democratic society we are living in. The Government takes a decision to protect the sovereignty of the country from the demonic attack of the neighbouring countries where the courts have hardly any role to save the country and the politicians whom the apex court discarded to repose confidence in the matter of appointment of judges are more useful to save the country if foreign aggression is ever apprehended.  One can’t be the judge of his own cause and thus the judges deciding their own cause is being viewed as a bad sign for the democracy of the country. Hence upon persuasion from the persons of different walks of life, Odisha Nagarika Samaj (ONAS), being one such civil society alliance in Odisha, organized a seminar on “The need for Judicial Reforms in India” on November 1, 2015. 

Representatives from many civil society  organizations, eminent social workers, activists, former ministers, politicians, academicians, former bureaucrats, former judges and members of various bar associations, lawyers of the High Court and other sub-ordinate courts participated actively in the deliberations.

It was decided that the collective opinion which emerged at the end of the deliberations to be submitted to the Hon’ble President of India, Hon’ble Supreme Court of India and the Attorney General of India being the voice of Odisha civil society to the issue of ‘Judicial Reforms vis-à-vis effective collegium’. All the participants being courageous wanted to lay their hands in the formation of effective judicial system in the country and thereby showed their great concern and surprise over the recent stand-off between the judiciary and the legislature. 

The Constitution of India has devised its mandate under Articles 217 which runs as:

217. Appointment and conditions of the office of a Judge of a High Court: 

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; Explanation For the purposes of this clause

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.

The Constitution has itself provided as to how the appointment of judges in higher judiciaries be taken care of and more so at that time the founders of the constitution were all alive and at no point of time any such allegation was ever floated but the Apex Court being the judge of one’s own cause has devised a Collegium system by centralizing the appointment of judges in themselves alone and the Government which was responsible to maintain the system was kept at  bay and over the period the outcome of Collegium had rather introduced a kind of suspicion in the mind of general public with regard to appointment of a judge and till the appointment under warrant was issued , we were all in dark and as a result over the period acute favouritism,nepotism and element of arbitrariness had been the burning issue in the appointment of judges in higher judiciary and when there had been serious allegations of corruption and abuse of authority by the judges had made resentment  among the people, the formation of NJAC was thought of as a step to bring transparency in the appointment of judges.

However, the way our system is functioning in the name of democracy, we are apprehensive that our suggestions, as invited, have hardly any values to influence the process but still we being one such civil society alliance in the state make the following suggestions to bring transparency in the appointment stated supra.

The striking down of the 99th constitutional amendment while scrapping the NJAC Act which followed from it, evoked sharp resentment from among the participants who viewed it as ‘absolutism’ of the judiciary without accountability. ‘Separation of powers’, enshrined in the constitution ensuring checks and balances between each branch had become unfairly tilted towards the judiciary where the judges appointment themselves through a system which was opaque and without transparency. 

The views of Hon’ble Supreme Court in the judgment of October16, that, the civil societies in India are immature was entirely without basis, because it was the civil society movement which overthrew the authoritarian rule during emergency to restore the democratic rule in the country. Hence alibis like ‘partisan politics of political executives and immature civil society’ should not be grounds for striking down a constitutional amendment purely on the basis of apprehensions. Therefore, the NJAC system should be allowed with some modifications like withdrawal of ‘veto power’ and other such provisions as may be suggested by the Hon’ble Supreme Court.

Apart from dwelling at length on appointments of judges the deliberations also focused on several other issues plaguing the judiciary of late. However, the following humble suggestions were made by the civil society members and organizations seeking the attention of the concerned authorities:

Transparency:

1. Since the collegium system of appointment of judges has come under suspicion on the charges of unfair practices and nepotism etc., the selection process should be transparent and above-board. 
2. All the records in connection with selection of judges to higher judiciary should be accessible to public and the process should come under RTI Act. 
3. If someone is recommended for appointment as a judge despite poor/ unsatisfactory records, reason may be cited in writing for selection. 
4. If President / Governor objects to any name and the collegium still consider him/her eligible, a speaking order of justification by the collegium must be recorded and placed in the public domain. 

Collegium Secretariat: 

1. A full time secretariat should be in place to deal exclusively with the appointment of judges. 
2. This secretariat should invite nominations from the Bar Councils, Bar Associations, civil society groups, eminent jurists and retired civil servants. It can also invite applications from interested persons additionally. 
3. The secretariat will prepare short list of candidates with bio-data and display it in the public domain. 

Eligibility Criteria:

1. Selection of candidates for appointment as judges from the bars to the constitutional courts should be based on merit with a minimum of 10 years uninterrupted practice in a High Court. 
2. Selection from the bar and bench be made either or both through a written examination and the review of performance. In future All India Judicial Service may be considered for appointment to the higher judiciary. 
3. A robust performance appraisal system should be in place for promotion of High Court judges to the Apex court along with the seniority.
4. The secular credentials of a person to be ensured while selecting as a judge. 

Complaints:

1. Complaints if any, after the short list is published to be taken into consideration only if supported by credible evidence within stipulated time. 
2. Frivolous complaints not to be entertained.
3. If evidence of malfeasance received   after appointment, the same to be investigated and disposed off in a time bound manner. 

Other suggestions:

1. The number of court holidays to be rationalized to clear the backlogs.
2. All judgments of the High Court and Supreme Court to be uploaded to the respective court’s websites. 
3. The registration of cases to be serialized and heard in chronological order.
4. Transaction in the lower courts should be in vernacular language.  
5. The High Court judges should be transferred regularly within the country preferably once in every three years. 
6. After retirement or relinquishment of office, the judges should not engage in any party politics. 
7. Impeachment system of sacking of judges should be abolished. They should be treated as any other public servant. 
8. After completion of hearing the judgment should be delivered within a stipulated time. It should not be withheld indefinitely.
9. The code of conduct for the judges should strictly be adhered to.

Whatever suggestions are accepted by the Hon’ble Supreme Court should ideally be passed as law in the parliament to accord constitutional status. 

Submitted by:

Odisha Nagarika Samaj (ONAS)

HIG 29-B, Prajnabihar BDA Duplex, Baramunda, Bhubaneswar, Odisha, Pin-751003

Onas09@gmail.com