Reportable

IN THE SUPREME COURT OF INDIA

ADVISORY JURISDICTION

REFERENCE NO. 1 OF 2003

Reference under Article 317(1) of the Constitution of India

In Re:

Under  Article  317(1)  of  the  Constitution of  India  for enquiry and report on the allegations against Dr. H.B. Mirdha, Chairman, Orissa Public Service Commission

J U D G M E N T

J.M. Panchal, J.

1. This  is  a  Reference  under  Article  317(1)  of  the

Constitution of  India  for  enquiry  and report  on

the charges levelled against Dr. H.B. Mirdha, who

was  Chairman  of  the  Orissa  Public  Service

Commission.

2. The  facts  giving  rise  to  the  Reference  are  as

under:

Dr. H.B. Mirdha was appointed as Member of the

Orissa  Public  Service  Commission  (‘OPSC’  for  short)

on April 3, 1998.  Later on he took over as Chairman

of  the  OPSC on  April  30,  1999.   An  advertisement

inviting  applications  for  the  Orissa  Civil  Services

Examination, 2000 was published in the newspapers

on November 6, 2000.  The last date for receipt of the

applications  was  January  31,  2001.   The  Special

Secretary of the OPSC circulated a declaration to be

made by all the Members including the Chairman and

the  employees  as  to  whether  any  of  their  near

relations  or  persons  they  were  interested  in,  were

appearing  in  the  examination.   The  purpose  was to

keep  such  members  or  the  employees  out  of  the

process of conducting examination in order to ensure

impartiality  and  fair  play.   Dr.  Mirdha  declared  on

January  8,  2001  that  none  of  his  relatives  was

appearing in the ensuing examination.  Subsequent to

above  declaration,  two  married  daughters  of  Dr.

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Mirdha applied on January 31, 2001 for undertaking

the ensuing examination.  A meeting of the OPSC was

held on May 10, 2001.  The Special Secretary placed a

proposal for condonation of certain deficiencies found

in some of the applications, which were received.  The

Commission deliberated and decision in each case was

taken.  However, no information regarding selection of

question papers for the preliminary examination was

given  by  the  Chairman  to  other  members  of  the

Commission.  Again in the meeting held on May 30,

2001  several  important  points  were  discussed

regarding the modality to be adopted for the selection

of question papers for the preliminary examination as

well as declaration by the Members for the purpose of

maintaining  secrecy  and  the  declaration  by  the

Members  and  the  employees  regarding  their  close

relatives  appearing  in  the  examination.   In  this

meeting, Dr. Mirdha did not offer such declaration of

interest in respect of his close relatives who were to

appear  in  the  forthcoming  examination  to  be

conducted  by  the  OPSC.   The  examination  of  the

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records  indicate  that  his  two  married  daughters,

namely,  Smt.  Anuragini  Mirdha  and  Smt.  Sitarani

Mirdha had made applications on January 31, 2001

for  undertaking  the  examination  and  that  they  had

withdrawn  their  applications  on  May  31,  2001  by

sending a fax message.  In meeting held on June 2,

2001, Dr. Mirdha had divulged that his two married

daughters  were  candidates  for  examination but that

fact was not known to him and as his daughters had

withdrawn their candidature, there was no bar to his

involvement in the examination process.  Mr. Sarkar,

Member  of  the  Commission,  had  pointed  out  that

withdrawal  of  candidature  by  his  daughters  did  not

make  any  difference  and  the  fact  remained  that  as

Chairman, Dr. Mirdha had involved himself with the

process  of  selecting  question  papers  while  his

daughters were candidates.  Mr. Mohanty, Member of

the  Commission  endorsed  Mr.  Sarkar’s  view  and

added  that  it  was  impossible  to  believe  that  Dr.

Mirdha was not aware of his daughters’ candidature.

It is alleged that these remarks infuriated Dr. Mirdha,

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who shouted at both the Members  in an uncivilized

manner.  It was further alleged that on June 5, 2001,

Dr.  Mirdha  had  telephoned  Dr.  (Mrs.)  Ray  at  her

residence and exerted pressure on her to agree to his

note  on  issuance  of  admission  cards  but  Dr.  (Mrs.)

Ray had refused to oblige him and, therefore, on June

7, 2001, Dr. Mirdha had used vulgar and vituperative

language and threatened to launch tirade against the

three  Members  of  the  Commission.   Levelling  above

mentioned  allegations,  the  three  members  had

addressed representation dated June 11, 2001 to His

Excellency the  Governor of  Orissa with a request  to

take action against Dr. Mirdha.  The Commission was

kept in dark regarding the procedure to be adopted by

the Chairman to settle question papers and to make a

final selection.

3. Dr. Mirdha, while holding the Office of Member

and Chairman of the OPSC, which is a full time

Office, was supposed to maintain utter devotion

and sincerity to the Office.  It was alleged that an

infraction  of  law  and  breach  of  constitutional

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duty  was  committed  by  him  by  associating

himself illegally with a private coaching centre at

Sambalpur  known  as  OAS  Coaching  Centre,

which functioned as a private high school known

as  Budharaja  High  School  at  Ainthapalli  in

Sambalpur Town.  According to the allegations a

retired IAS Officer Mr. Purna Chandra Padhi was

engaged  by  Dr.  Mirdha  and  the  said  Centre

thrived  because  of  its  connection  with  Dr.

Mirdha.   What  was  alleged  was  that  it  was

planned  to  accommodate  the  candidates

belonging to the aforesaid coaching centre in the

examinations to be conducted by the OPSC.

4. Further,  a  complaint  was  submitted  by  Ms.

Pranati  Patro  on October  27,  2000  against  Dr.

Mirdha on a serious charge of bribery.  According

to  the  said  complaint,  the  complainant  had

appeared  along  with  37  students  for  being

selected  to  two  posts  that  were  advertised  on

January  26,  1999  in  the  subject  of  Home

Science.  Out of 37 students, 10 students were

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selected for interview on the basis of written test,

in which, according to the complainant, she had

secured  the  highest  marks.   Ms.  Patro  was

interviewed  by  the  Board  consisting  of  Dr.

Mirdha and others.  The interview was held on

June 12, 2000 in which Ms. Ajanta Nayak had

been  selected  despite  her  having  secured  the

lowest marks in the written test.  It was alleged

that the marks awarded in the interview to Ms.

Patro, who had secured maximum marks in the

written  test,  were  intentionally  reduced  at  the

behest of Dr. Mirdha for which, according to Ms.

Patro, Dr. Mirdha had received a sum of Rs.1.5

lacs for favouring Ms. Ajanta Nayak to select her

as a Junior Lecturer in Home Science.

5. Keeping  in view the above  allegations  made  by

Ms.  Patro,  a  reference  was  made  by  the  State

Government to the Lokpal, Orissa.  The Lokpal in

his order dated February 5, 2002 observed that

in  view  of  the  provisions  of  Section  21  of  the

Orissa  Lokpal  and  Lokayuktas  Act,  1985,  the

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Lokpal was not authorized to investigate into the

actions taken by Chairman or a Member of the

OPSC.

6. On the basis of the representation received, the

Governor of Orissa made an initial  reference to

the State Government to take appropriate action.

After preliminary enquiry, the State Government,

at the level  of the Chief Minister, requested the

Governor  to  recommend  to  His  Excellency  the

President  of  India  to  make  reference  to  the

Supreme  Court  under  Article  317(1)  of  the

Constitution.  The Governor requested the State

Government  to  obtain  legal  opinion  on  the

question  whether  on  the  available  material  a

prima  facie  case  was  made  out  against  the

Chairman for action under Article 317(1) of the

Constitution.   The  State  Government  obtained

the opinion of the Advocate General and the Law

Secretary.   They  opined  that  there  existed  a

prima facie case for initiating action against the

Chairman of the OPSC under Article 317(1) of the

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Constitution.   Therefore,  the  State  Government

reiterated  its  earlier  request  for  action  under

Article 317(1) of the Constitution.  The Governor

was of the opinion that it was incumbent upon

the  Chairman  of  a  State  Public  Service

Commission  to  maintain  an  image,  dignity,

impartiality and integrity and that the conduct of

Dr.  Mirdha  prima  facie  showed  failure  to

maintain  absolute  integrity  and  dignity.   The

Governor,  therefore,  by  letter  dated  August  23,

2001, recommended to the Hon’ble the President

to make a reference to the Supreme Court under

Article  317(1)  of  the  Constitution  for  necessary

enquiry  into  the  allegations  made  against  the

Chairman.

7. The Hon’ble President took into consideration the

letter dated August 23, 2001, addressed by the

Governor of Orissa to him, as well as reply of Dr.

Mirdha obtained by Governor of Orissa and other

materials.   The  Hon’ble  the  President  was

satisfied from the material placed before him that

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a prima facie case was made out for enquiry into

the first two charges in the complaint made by

the Members of the Commission and the charge

levelled in the petition filed by Ms. Patro against

the Chairman of the Commission.  Therefore, in

exercise  of  the  powers  conferred  upon  him  by

Clause (1) of Article 317 of the Constitution the

Hon’ble  the  President  referred  to  the  Supreme

Court  of  India  for  enquiry  and  report  as  to

whether Dr. Mirdha, Chairman, OPSC ought, on

the grounds of misbehaviour, to be removed from

the Office of Chairman of the Commission.  The

Reference  received  was  registered  as  Reference

No.  1  of  2003  under  Article  317(1)  of  the

Constitution  and  notices  were  issued  to  the

interested parties.

8. The learned  counsel  for  Dr.  Mirdha had raised

three  preliminary  objections  to  the

maintainability  of the Reference.   Briefly  stated

they  were  (i)  no  hearing  or  opportunity  of

showing cause was given to him by the President

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before making the Reference and, therefore, the

Reference  should  be  rejected,  (ii)  the  Reference

was vague, and (iii) assuming the facts stated in

the  Reference  to  be  correct,  yet  a  case  for

proceeding  ahead  against  him  within  the

meaning of  sub-Article  (1)  of  Article  317 of  the

Constitution was not made out.

9. After hearing the learned counsel for the parties

this Court, by an order dated March 29, 2005,

expressed  the  opinion  that  no  hearing  or

opportunity  of  showing  cause  against  the

proposed  Reference  under  Article  317(1)  of  the

Constitution  was  necessary  before  making  the

Reference.   In  view  of  this  opinion  the  first

objection  raised  by  Dr.  Mirdha  was  overruled.

The  Court  had  perused  the  contents  of  the

Reference  and  the  accompanying  documents.

The Court noticed that the Reference referred to

the  complaints  annexed  with  Reference

wherefrom the facts,  constituting the ground of

alleged  “misbehaviour”  within  the  meaning  of

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Article  317(1)  of  the  Constitution,  were  clearly

stated.   The  Court,  therefore,  overruled  second

preliminary  objection  that  the  Reference  was

vague.  As far as third preliminary objection was

concerned,  the  Court  had  directed  the  learned

Additional  Solicitor  General  to  file  a  statement

setting  out  the  charges  and  the  facts  forming

basis thereof,  which might need to be inquired

into consistently with the procedure laid down by

this  Court  in  the  matter  of  Reference  under

Article  317(1)  of  the  Constitution  Special

Reference No. 1 of 1983 decided on August 17,

1983  and  reported  in  (1983)  4  SCC  258.   In

accordance with the direction of the Court,  the

statements  of  allegations  and  statement  of

charges were filed.

10. In order dated July 14, 2006 it was observed by

this  Court  that  the  Reference  relates  to  three

charges.   The  OPSC had prayed  to grant eight

weeks’  time to file the list of witnesses and the

affidavits of the witnesses along with documents

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by  which  the  charges  were  said  to  be  proved

against  Dr.  Mirdha.   The  said  request  was

granted by the Court.  It was further observed in

the order  that  on filing of  the  list  of  witnesses

etc., further directions in respect of nominating a

Judge  to  record  the  cross-examination  of  the

witnesses, if sought for by Dr. Mirdha, would be

issued  as  also  the  place  of  recording  the

evidence.  Dr. Mirdha was also given liberty to file

within  eight  weeks  a  list  of  witnesses  and

affidavits along with documents in defence of the

charges.   Accordingly  affidavits  and  reply

affidavits have been filed.  It was agreed by the

learned counsel for the parties that the Reference

should be decided on the basis of the affidavits

filed by the parties.

11. This Court has heard the learned counsel for the

parties at length and in great detail.  This Court

has  also  perused  the  affidavits,  reply  affidavits

and  documents  produced  along  with  those

affidavits.

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12. From the record of the case it is evident that Dr.

Mirdha  was  appointed  as  Chairman  of  the

Commission  on  April  30,  1999.   This  was  not

liked  by  Dr.  (Ms.)  Prativa  Ray,  who  herself

wanted to be the Chairman of  the Commission

and, therefore, started behaving in a manner to

defy  the  authority  of  the  Chairman.   The

atmosphere  of  the  Commission  was  absolutely

vitiated and the Members of the Commission had

approached  the  press  hitting  at  the  Chairman

and criticizing the functioning of the Commission

under  his  leadership  on  number  of  occasions.

The  advertisement  for  conducting  Orissa  Civil

Services  Examination  was  approved  by  the

Commission on November 6, 2000.  In fact there

is  no  rule  and/or  order  requiring  that  the

Chairman  or  the  Members  of  the  Commission

and employees  should  give  a  declaration  as  to

whether their near relatives are appearing in the

examination.   There  can be  no doubt  that  if  a

selection  committee  is  constituted  for  the

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purpose  of  selecting  candidates  on  merits  and

one of the members of the selection committee is

closely related to a candidate appearing for the

selection,  it  would  not  be  enough  for  such

Member  merely  to  withdraw  from  the

participation  in  the  interview  of  the  candidate

related to him but he must withdraw altogether

from  the  entire  selection  process  and  ask  the

authorities  to  nominate  another  person  in  his

place  on  the  selection  committee  so  that  the

selections  made  are  not  vitiated  on  account  of

reasonable  likelihood  of  bias.   In  the  meeting

dated November 20, 2000 it was decided with the

approval  of  Dr.  Mirdha  as  Chairman  of  the

Commission  that  the  Chairman,  Members  and

the  staff  of  the  Commission  should  give

declaration as to whether his near relation was a

candidate  for  the  examination.   The  record

further  shows  that  on  January  8,  2001  Dr.

Mirdha  submitted  his  declaration  that  his  two

unmarried  daughters,  who  were  staying  with

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him,  were  not  appearing  in  the  Orissa  Civil

Services  Examination.   Subsequent  to  above

mentioned declaration, two married daughters of

Dr.  Mirdha  applied  on  January  31,  2001  for

undertaking the examination.   On January 22,

2001  Mr.  H.S.  Sarkar,  a  Member  of  the  OPSC

signed  a  declaration  stating  that  none  of  his

relatives  nor  any  person  in  whom  he  was

interested  was  the  applicant  in  the  ensuing

recruitment.  Dr. (Ms.) Prativa Ray did not sign

the declaration until June 7, 2001.  On June 11,

2001  she  made  a  declaration  that  one  of  her

relations  was  appearing  in  the  OPSC

examination.  In view of the declaration made by

Dr. (Ms.) Ray Mr. H.S. Sarkar was made Incharge

to conduct the preliminary examination.  The last

date for receipt of the applications for Orissa Civil

Services Examination was January 31, 2001.  In

the  meeting  held  on  May  10,  2001  the

Commission  unanimously  resolved  to  hold  the

examination  on  July  8,  2001.   It  may  be

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mentioned  that  in  all  51852  applications  were

received, out of which 1968 defective applications

were rejected.  On May 31, 2001, the two married

daughters  of  Dr.  Mirdha,  who  were  applicants,

sent  a  fax  message  withdrawing  their

applications.   On  June  1,  2001  Dr.  Mirdha

submitted his declaration stating that none of his

near relations nor any person in whom he was

interested  was  an  applicant  for  the  ensuing

examination.  The matter relating to the issue of

admission certificates to the candidates and the

number of applications to be rejected was placed

before  the  Commission  in  its  meeting  held  on

June 2, 2001.  As per the affidavit filed by Mr.

Sarkar, in this meeting Dr. Mirdha informed that

his  two married  daughters  were  candidates  for

the examination but that fact was not known to

him  and  as  they  had  withdrawn  their

candidature, there was no bar to his involvement

in  the  examination  process.   According  to  Mr.

Sarkar this stand of Dr. Mirdha was objected to

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by him.  The issue of admission certificates was a

routine work of the Commission.  But Mr. R.C.

Mohanty and Mr. H.S. Sarkar, who were present

in  the  meeting,  did  not  cooperate  and  did  not

sign  the  proposal  for  issue  of  admission

certificates.   Since  the  arrangements  in

consultation  with  coordinators,  i.e.,  concerned

Collectors,  Additional  District  Magistrates  and

sub-Collectors  were  to  be  made  for  holding

examination, it was decided on June 4, 2001 to

discuss  the  matter  with  the  Chief  Secretary  to

avoid deadlock that had taken place due to non-

cooperation  of  the  Members  of  the  OPSC.

Ultimately Dr. Mirdha passed an order on June

5,  2001  to  issue  admission  certificates  to  the

candidates.   The  record  shows  that  the  three

Members  of  the  Commission  requested  the

Chairman  to  fix  up  a  date  for  discussion

regarding  preliminary  examination.   The

Members  took  the  stand  that  the  examination

process was vitiated in view of the fact that two

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married  daughters  of  the  Chairman  were

candidates  and  that  withdrawal  of  candidature

by  the  daughters  had  no  effect  and,  therefore,

date earlier fixed for holding examination should

be postponed.  What is relevant to notice is that

on June 7, 2001 Dr. (Ms.) Prativa Ray submitted

a  declaration  that  none  of  her  relatives  was

appearing  in  the  examination  but  on June  11,

2001 she submitted another declaration stating

that  one  of  her  relatives  was  appearing  in  the

examination.

13. The principle, which requires that a Member of a

Selection  Committee,  whose  close  relative  is

appearing for selection, should decline to become

a  Member  of  the  Selection  Committee  or

withdraw  from  it  leaving  it  to  the  appointing

authority  to  nominate  another  person  in  his

place  need  not  be  applied  in  case  of  a

constitutional  authority  like  the  Public  Service

Commission,  whether  Central  or  State.   If  a

Chairman  or  Member  of  Public  Service

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Commission  were  to  withdraw  altogether  from

the selection process on the ground that a close

relative of his is appearing for selection, no other

person save a Chairman and/or a Member can

be  substituted  in  his  place.   And  it  may

sometimes  happen  that  no  other  Member  is

available to take the place of such Chairman or

Member and the functioning of the Public Service

Commission may be affected.  Here in this case

the  married  daughters  of  Dr.  Mirdha  had

withdrawn  their  candidature  before  the

examinations  were  held.   They  had  neither

appeared in the examination nor Dr. Mirdha had

taken  any  step  in  selecting  any  of  his  two

daughters for the Orissa Civil Services.  None of

the close relative of Dr. Mirdha had appeared for

interview  and,  therefore,  no  occasion  arose  for

Dr. Mirdha to withdraw from participation in the

interview, etc.  As noticed earlier Dr. (Ms.) Prativa

Ray  had  submitted  a  declaration  on  June  7,

2001 stating that none of her near relative was

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appearing  in  the  examination,  but  within  few

days, i.e., on June 11, 2001 she had submitted

another  declaration  stating  that  one  of  her

relatives was appearing in the examination.  It is

strange that no reference had been made under

Article  317(1)  of  the  Constitution  against  Dr.

(Ms.)  Prativa  Ray  though  on  the  same  ground

Reference is made against the Chairman to this

Court.  It has also come on record that the Law

Department  of  the State  Government  opined  to

refer  the  matter,  under  Article  317(1)  of  the

Constitution against  remaining  Members  of  the

OPSC  for  their  acts  of  insubordination,  non-

cooperation, etc. amounting to misbehaviour on

their part, but no Reference is made to this Court

against remaining Members of the OPSC.  Article

317,  like  Article  124(4)  does  not  define

misbehaviour  or  enumerate  what  acts  would

constitute misbehaviour except that Clause (4) of

Article 317 makes an improvement in specifying

misbehaviour,  namely,  being  interested  in  any

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government  contract.   Outside  Clause  (4),  it  is

left to the Supreme Court to determine whether

any particular act or conduct is of such a nature

as  to  warrant  the  removal  of  the  Chairman  or

Member  on  the  ground  of  ‘misbehaviour’.

Ordinarily  bribery,  corruption  and  the  like

should be regarded as such ‘misbehaviour’.  But

there  is  no  limitation  prescribed  by  the

Constitution itself.  In Madan Lal vs. State of J &

K [(1995)  3  SCC  486],  petition  was  filed  to

challenge  the  process  of  selection  of  Munsifs

undertaken by J & K Public Service Commission.

One  of  the  grounds  urged  was  that  the

respondent  No.  13  being  daughter  of  the

Chairman of  the  Commission  and  daughter-in-

law  of  another  Member  thereof,  was  given  a

special favourable treatment by unduly inflating

her marks in viva voce test so that anyhow she

would get selected for post of Munsif and hence

her selection was bad in law.  It was found that

the Chairman and the Member had disassociated

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themselves  from  the  selection  process  as

respondent No. 13 was competing.  It was argued

by the  learned  counsel  for  the  petitioners  that

relatives  of  the  Members  simpliciter  were  not

disqualified from applying for the post advertised.

The  plea  that  other  Members,  who  were

bureaucrats and would be having liking and soft

corner  for  each other,  did  not find favour with

this  Court  and  ultimately  the  said  plea  was

rejected.  In Article 124 (4) ‘misbehaviour’ means

wrong conduct or improper conduct.  It has to be

construed  with  reference  to  the  subject-matter

and the context wherein the term occurs, having

regard  to  the  scope  of  the  Act  or  the  Statute

under  consideration.   Every  act  or  conduct  or

error  of  judgment  or  negligence  by  a

constitutional authority per se does not amount

to misbehaviour.  Misconduct implies a creation

of some degree of mens rea by the doer.  Willful

abuse of constitutional office, willful misconduct

in the office, corruption, lack of integrity or any

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other offence involving moral turpitude would be

misbehaviour.  Judicial  finding of guilt of grave

crime  is  misconduct.   Persistent  failure  to

perform duties or willful abuse of the office would

be  misbehaviour.   On  the  facts  and  in  the

circumstances  of  the  case  this  Court  is  of  the

opinion that charge No. 1 that Dr. Mirdha, who

was  Chairman  of  the  OPSC,  committed

misbehaviour  by  not  informing  that  his  two

married  daughters  were  to  appear  in  the

examination is not proved.

14. As  far  as  the  second  charge  is  concerned  this

Court  finds  that  on  June  12,  2001  it  was

intimated  that  the  meeting  of  the  Commission

would  take  place  on  June  14,  2001  for

discussion and disposal of various cases relating

to promotion etc. and the agenda was circulated.

On June 13, 2001 Dr. (Ms.) Prativa Ray alleged

that the Chairman had threatened her with life

and  also  threatened  other  Members  of  the

Commission on many occasions in Commission’s

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meetings.   It  was also  alleged  that on June 7,

2001  the  Chairman  had  misbehaved  with  her

and  threatened  to  launch  a  tirade  against  the

three Members of the Commission.  On June 14,

2001  Dr.  (Ms.)  Ray  had  also  filed  a  complaint

with  the  police  and  given  the  same  a  wide

publicity in the newspapers.  On June 14, 2001

the Chairman fell ill and, therefore, the meeting

had to be  cancelled.   The  intimation indicating

cancellation  of  the  meeting  was  circulated

amongst  the  Members  of  the  Commission.

However,  the  Members  preferred  to  hold  the

meeting  in  the  absence  of  the  Chairman  and

discussed  the  matters  which  were  not  forming

part  of  the  agenda  and  decided  that  the

examination  be  postponed  to  a  later  date  as,

according to them, the examination process had

vitiated.  The three Members of the Commission

thereafter requested the Chairman on June 18,

2001 to hold an emergent meeting on June 19,

2001.   The  said  meeting  was conducted  under

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the Chairmanship of Dr. Mirdha.  The Chairman

did  not  agree  to  postponement  of  the

examination because  postponement would have

resulted  into  huge  loss  to  the  Commission.

However,  the Members with a majority decision

decided to postpone the date and also decided to

give  wide  publicity  through  media.   On

September  19,  2001  there  was  no  agenda  for

discussion regarding OCS (Main) examination in

the Commission’s meeting.  However, Mr. Sarkar

brought  one  page  note  sheet  mentioning  that

“discussed.  Dr.  (Ms.)  Prativa  Ray,  will  remain

incharge  of  OCS  Examination  2000  (Main)”,

which was  signed  by  two  other  Members  also.

The  Chairman  did  not  agree  with  the  said

proposal  and  gave  his  note  of  dissent.   The

matter was not discussed as an approved agenda

in  the  Commission’s  meeting.   The  police

investigated into the complaint of Dr. (Ms.)  Ray

regarding  threatening  phone  call  made  by  Dr.

Mirdha on June 7, 2001 and submitted the final

26

report stating that the case was closed for want

of evidence.  The record further shows that the

final  report  of  the  police  was  accepted  by  the

learned Magistrate and Dr. (Ms.) Prativa Ray did

not file the protest petition.  The proceedings of

different  meetings  of  the  Commission  would

indicate  that  Dr.  Mirdha  had  not  acted  in  a

manner  so  as  to  compromise  the  image,  the

dignity  and  the  impartiality  of  the  OPSC.

Therefore,  the  said  allegation  does  not  stand

proved.   Further  no credible  evidence  could  be

adduced before this Court that Dr. Mirdha, who

was  then  Chairman  of  the  OPSC,  had  been

associated  with  a  private  coaching  centre  at

Sambalpur  known  as  OAS  Coaching  Centre

providing classes  in respect  of  the  examination

being conducted by the OPSC, even while holding

the  Office  of  Member/Chairman  of  the  OPSC.

Therefore, it is difficult to hold that Charge No. 2

levelled against Dr. Mirdha is proved.

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15. As  far  as  Charge  No.  3  is  concerned  it  was

alleged that Dr. Mirdha as Chairman, OPSC, had

received  Rs.1.5  lacs  to  favour  one  Ms.  Ajanta

Nayak to get her selected as Junior Lecturer in

Home Science for a post advertised on January

26, 1999 in respect of which written examination

was  held  on  March  5,  2000  and  the  oral

interview was held on June 12, 2000.  What was

alleged was that Ms. Ajanta Nayak was selected

despite she having secured the lowest marks in

the written test  whereas the marks awarded to

Ms. Patro, at oral interview, who had secured the

maximum  marks  in  the  written  test,  were

intentionally reduced at the behest of Dr. Mirdha.

It is relevant to notice that charge of bribery was

levelled by Ms. Patro after about six months by

writing a letter to the Chief Minister.  According

to  her,  she  was  informed  by  Ms.  Ratna  Sahu,

who was one of the experts in the subject, that

she was given a pencil in place of a pen to allot

marks and that when she came down steps after

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the interview she found some people discussing

that a bribe of Rs.1.5 lacs was paid by Ms. Ajanta

Nayak to the Chairman.  It  is an admitted fact

that  the  Lokpal  had  recorded  the  statement  of

two  witnesses,  i.e.,  Ms.  Ratna  Sahu  and  Ms.

Adarmani  Baral,  whose  niece  had  appeared  in

the interview.  The Lokpal did not administer the

oath nor got the statements verified.  As per the

statement when Smt. Adarmani Baral was sitting

in  the  waiting  room,  there  was  a  discussion

regarding  bribe  having  been  paid  to  the

Chairman.  The Chairman had replied that in the

written  test  conducted,  Ms.  Pranati  Patro  had

secured  102  marks  whereas  Ms.  Ajanta  Nayak

had secured 126 marks.  It was also mentioned

by  him  that  one  Susmita  Bahera  had  secured

116 marks and Smt. Bharti Nayak had secured

114 marks.  What was stated by the Chairman

was that  Viva  Voce  test  of  20  marks was  held

wherein  Ms.  Patro  and  Smt.  Bharti  Nayak

secured  14  marks  each  whereas  Ms.  Ajanta

29

Nayak  secured  18  marks  and  Smt.  Susmita

Bahera  had  secured  20  marks  and,  therefore,

even if said Ms. Patro had got 20 marks in the

viva voce test, she would not have been selected.

Having perused the record of the case this Court

finds that even on preponderance of probability

the  charge  that  the  Chairman  had  accepted  a

sum of Rs.1.5 lacs as bribery for favouring Ms.

Ajanta Nayak is not established.  In absence of

cogent and reliable evidence this Court finds that

Charge  No.  3  levelled  against  the  Chairman of

the OPSC is not proved.

16. The  net  discussion  made  above  indicates  that

none of the charges levelled against Dr. Mirdha

stand  proved.   The  Reference  is,  therefore,

decided in favour of Dr. Mirdha and answered in

negative.

17. The Reference accordingly stands disposed of.

...................................CJI

30

[K.G. Balakrishnan]

.....................................J. [P. Sathasivam]

.....................................J. [J.M. Panchal]

New Delhi; November 10, 2008.

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