0

NKJ & HSKJ 30.03.2012

ORDER

IN

WRIT PETITION NO.8788/2012 (S-CAT) C/W. WRIT PETITION NO.9655/2012 (S-CAT)

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 30TH DAY OF MARCH, 2012 PRESENT THE HONBLE MR. JUSTICE N.KUMAR AND THE HONBLE MR.JUSTICE H.S.KEMPANNA

WRIT PETITION NO.8788/2012 (S-CAT) C/W. WRIT PETITION NO.9655/2012 (S-CAT)

IN WRIT PETITION NO.8788/2012 BETWEEN: The State of Karnataka Represented by its Chief Secretary Government of Karnataka Bangalore

Petitioner

(By Sri. S. Vijay Shankar, Advocate General along with Smt. Revathi Adinath Narde, HCGP) AND: 1. Sri. A.R. Infant I.P.S. Karnataka Cadre Aged about 59 years S/o. Mr.A.R. Kunju Presently DGP

Commandant General Home Guards, Director of Civil Defence & Director General Fire & Emergency Services, Bangalore, O/o. DGP, No.1, Annaswamy Mudaliar Road Bangalore - 560 042 2. Secretary DOPT Union of India North Block New Delhi 110 001. Mr. Shankar Mahadev Bidari, IPS DG & IGP (Head of Police Force), Karnataka, Bangalore. UPSC Represented by its Secretary New Building, Dholpur House Shah Jahan Road New Delhi 110 069.

3.

4.

Respondents

(By Sri.Navkesh Batra, Adv, for Nandi Law Chambers, for C/R.1 Sri. M.V. Rao, Adv., for R.2 Sri.P.S.Rajagopal, Sr. Counsel, and Sri.M.N.Prasanna, Adv., for R.3 Sri.P.S. Dinesh Kumar, Adv., for R.4) This writ petition is filed under Articles 226 and 227 of Constitution of India praying to quash the impugned order dated 16.3.2012 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore in Original Application No.545/11 vide Annexure A and etc.

IN WRIT PETITION NO.9655/2012: BETWEEN: Dr. Shankar Mahadev Bidari, IPS S/o. Mahadeva Bidri Aged about 59 years Presently working as Director General and Inspector General of Police (HOPF) Karnataka State Police Head Quarters, Nrupathunga Road Bangalore 560 001.

Petitioner

(By Sri.P.S.Rajagopal, Sr. Counsel, and Sri.M.N.Prasanna, Adv.,) AND: 1. State of Karnataka Represented by its Chief Secretary Government of Karnataka Vidhana Soudha Bangalore 560 001. Secretary Department of Personnel and Training Ministry of Personnel Public Grievances and Pensions Union of India, North Block New Delhi 110 001. Union Public Service Commission By its Secretary New Building, Dholpur House Shahjahan Road New Delhi 110 069. Sri. A.R. Infant I.P.S. S/o. Mr.A.R. Kunjum

2.

3.

4.

Presently working as Director General of Police Commandant General Home Guards, Director of Civil Defence & Director General Fire & Emergency Services, Bangalore O/o. DGP, No.1, Annaswamy Mudaliar Road Bangalore - 560 042 Respondents (By Sri. S. Vijay Shankar, Advocate General along with Smt. Revathi Adinath Narde, HCGP for R.1 & 2; Sri. P.S. Dinesh Kumar, Adv., for R.3 Sri.Navkesh Batra, Adv, for Nandi Law Chambers for R.4) This writ petition is filed under Article 226 of Constitution of India praying to quash the impugned order dated 16.3.2012 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore in Original Application No.545/11 vide Annexure A by issue of a writ in the nature of certiorari and grant such other reliefs and etc. These petitions coming on for Admission this day, N KUMAR J., made the following:-

ORDER

These two writ petitions are preferred challenging the order passed by the Central Administrative Tribunal, Bangalore Bench, declaring the empanelment and selection of third

respondent as void, invalid, arbitrary and illegal as a result of non-application of mind and due to deliberate suppression of material facts and consequently quashing both the

empanelment of the third respondent as a candidate eligible for consideration and Annexure-A1-notification appointing him as DG & IGP.

2.

The petition in W.P.8788/12 is preferred by the

State Government and W.P.9655/12 is preferred by the third respondent challenging the said order. For the purpose of

convenience, the parties are referred to as they are arrayed in the original application.

FACTUAL MATRIX 3. The applicant is an IPS officer joined the Indian

Police Service, in the year 1977. He has a careers planning 34 years and he is now working as DGP Commandant General Home Guards, Director of Civil Defence and Director of General Fire and Emergency Services, Bangalore.

4.

Sri.N.Achuta Rao, who was appointed as Director

General and Inspector General of Police on 05.07.2011, retired on 30.11.2011, on reaching the age of Superannuation. The applicant is the senior most Police Officer.

5.

The

State

Government

vide

letter

dated

02.11.2011, forwarded a proposal to the Union Public Service Commission (for short hereinafter referred to as UPSC) to convene a meeting of the Empanelment Committee for recommending a panel to enable them to select new incumbent in place of the present DG and IGP of the State, who was due for retirement on 30.11.2011, in terms of the judgment of the Apex Court in the case of Prakash Singh Vs. Union of India and Others reported in 2006 (8) SCC 1. The State Government sent five names in the order of seniority.

6. Supreme

The UPSC in compliance with the directions of the Court in Prakash Singhs case convened a

Empanelment Committee Meeting to prepare a panel for appointing of DG and IGP of Karnataka Cadre which was held on 30.11.2011. The Empanelment Committee considered the candidature of 5 eligible officers forwarded by the State Government. The Committee took into account the experience of the officers in the core areas of policing such as law and order, maintenance, crime investigation, administration etc., along with experience in the fields of

vigilance/intelligence/training etc. On the basis of the above assessment, the Committee prepared a panel consisting of the names of three officers as suitable for appointment to the post of DG and IGP of Karnataka. Thereafter, they communicated the said names to the Government.

7.

The Chief Minister, after considering the aforesaid

names, appointed the third respondent as DG and IGP of police (Head of Police Force), Karnataka, Bangalore in the Apex Scale of Rs.80,000/- with immediate effect and until further orders vice Sri.N.Achutha Rao, IPS retiring from service on

30.11.2011. It is this order of appointment and Empanelment made by the UPSC which was challenged by the applicant by filing an application before the Central Administrative Tribunal, Bangalore.

8.

In the application filed, the applicant has set out in

detail the facts which would disentitle the third respondent from being empanelled and considered for the aforesaid post. It was also contended that the said appointment is contrary to the judgment of the Apex Court in Prakash Singhs case. It is

graphically set out in the petition the haste with which the UPSC finalized the names for empanelment and also the haste with which the Chief Minister appointed the third respondent to the said post. The main ground urged is the finding of the National Human Rights Commission (NHRC) regarding human rights violations of villagers by the Special Task Force (STF), Karnataka commanded by the third respondent, which

included (i) illegal informal detention of male and female villagers, (ii) brutal and dehumanising torture of male and female villagers, and (iii) stripping, debasing and rape of women and (iv) the representation by Vimochana to His Excellency the Governor of Karnataka, highlighting the various crimes

committed by the Karnataka STF under the commandership of Respondent No.3. He also refers to several other incidents.

There was no meaningful appraisal by the UPSC of the service records and other materials. The State Government has patronized the third respondent. They did not take note of the human rights violation by STA force, which is commanded by the third respondent. A copy of the representation made by

him to the National Commission for Minorities and also the copy of the order dated 22.08.2008 by the NHRC to the IGP,

Grievances Human Rights, Police Housing and Welfare were also produced to substantiate those allegations.

9.

On service of notice in the said proceedings, the

State contested the matter by filing detailed statement of objection. They contend that the panel recommended by the UPSC contains the name of the applicant, one Sri.Lal Rokhuma Pachau and the third respondent. Since UPSC had empanelled the name of the third respondent as suitable for appointment to the post of Director General and Inspector General of Police, Karnataka, the State Government had the power to select any one of the three officers. In the opinion of the State Government, since the third respondent is a fit person to hold the post of Director General and Inspector General of Police, it selected the third respondent. When the selection is made by the Competent Authority, the same cannot be interfered with. The selection of a particular officer/candidate out of an empanelment cannot be challenged except on the ground of malafides or serious violation of the statutory rules. The Honble Supreme Court in Prakash Singhs case has given the discretion of selection to the State Government. Therefore, the

10

selection of the State cannot be faulted. No firm foundation is laid in the pleadings to establish the ground of malafides. Hence, the ground of malafides is liable to be rejected. They have traversed all other allegations made in the petition.

10.

Third respondent filed an independent statement of

objection referring to the human rights issue raised by the applicant. It was contended that the third respondent has not been indicted in the enquiry, conducted by the Panel, constituted by the NHRC, headed by the Honble Justice Sadashiva. The Honble Justice Sadashiva Commission was appointed to look into certain allegations made by certain individuals regarding violation of the human rights by the Karnataka and Tamilnadu Joint Task Force. The Commission has given its report in 2003 to the NHRC after detailed and prolonged enquiry. Specific allegations were made against the third respondent and the Panel has also given its report that these allegations have not been proved. allegations respondent made, and were proved and had finally if the National If at all, any indicted the third Human Rights

Commission had accepted the report of the Panel, headed by

11

Honble Justice Sadashiva, the NHRC would not have keep quiet and would have forwarded a copy of the report to the State Government or the Central Government along with the recommendations to take appropriate actions against the third respondent. Nine years have lapsed since then, and as the NHRC has not informed either the State Government or Central Government, that the third respondent is indicted in the enquiry conducted by the Panel, headed by Honble Justice Sadashiva, it only shows that the allegations made by the applicant are false and baseless. He has also traversed all

other allegations in detail. It is further stated that regarding the doctrine of command responsibility, in the meeting held between the Chief Minister of Karnataka and Tamilnadu on 10.04.1993, at Fort St.George, Chennai, it was decided that the Karnataka and Tamilnadu Task Forces should work jointly under the Commandership of Sri.Walter Devaram, the then ADGP, Law and Order, Tamilnadu State. The third respondent was appointed as Deputy Commander of Joint Task Force consisting of Karnataka and Tamilnadu Task Forces. The third respondent was only a Deputy Commander and the

Commander of the Joint Task Force was Sri. Walter Devaram,

12

the then ADGP, Law and Order, Tamilnadu. He was working under the supervision and direction of the Commander of the Joint Task Force Sri. Walter Devaram. Insofar as his work in Karnataka is concerned, he was working under the

supervision, direction and control of the ADGP, Law and Order and DGP of the State. Two officers have worked as ADGP, Law and Order, as Commander to STF and have supervised, controlled and directed the work performed by the respondent. If the command responsibility is accepted, then the four officers, who worked as DGPs and two Chief Ministers under whose control the Police Department worked during the tenure of the third respondent will have to share the responsibility for any blame regarding the performance of the Task Force. A

number of Junior officers were functioning in different camps, which were hundreds of kilometers away from the Head quarters of the third respondent. The Junior Officers were operating at their discretion in their respective areas and these Junior officers also have to share the command responsibility. As the operation conducted by the third respondent was a civilian operation, the doctrine of command responsibility, which relates to military operation, is not applicable. He has

13

set out various assignments, which he has undertaken in his career of 33 years as IPS Officer and various awards and recognition which has been confirmed during the said period. Therefore, he contends that as he is more meritorious than the applicant, he was selected to the said post and therefore, he sought for dismissal of the said petition.

11.

Fourth respondent has also filed a detailed reply

setting out the various steps which they took before calling the meeting dated 30.11.2011 for empanelment of the suitable persons for being appointed as DG and IPS of the State of Karnataka. The UPSC after examination of the proposal sent by the State observed that the Honble Supreme Court vide their letter dated 22.9.2006, in the case of Prakash Singh have directed that once an Officer has been selected for the post of DGP, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The tenure of DGP also came up for consideration before the Honble Supreme Court on 06.12.2010, wherein while taking into cognizance the State Governments undertaking that they will consult the Commission from time to time in the matter of appointment of

14

DGP, adjourned the case on the said aspect for four weeks to enable the learned counsel for the State to take instructions. Thereafter, the Commission vide letter dated 18.11.2011, requested the State Government to clarify whether they have taken any leave from the Honble Supreme Court for not extending the tenure of present DG and IGP for two years. The State Government vide their letter dated 19.11.2011, clarified that in pursuance of the order of the Honble Supreme Court of India dated 06.12.2010, in Prakash Singhs case, an affidavit was filed by them on 10.01.2011, and in the said affidavit it was submitted that they would abide by the direction of the Honble Supreme Court to be passed in the case, on the basis of the submissions to be made by the Central Government regarding amendment of the relevant rules and regulation dealing with the cadre management rules in the matter of tenure of DG and IGP of the State. They also intimated that the Government of India was yet to issue any amendment to the relevant rules and also informed that the Supreme Court had also not issued any further instructions in this regard. Therefore, they intimated that in the said circumstances it was not required to seek any leave from the Supreme Court. They

15

contend that they took into account the experience of the officer in the core areas of policing, such as Law and Order, Maintenance, Crime investigation, Administration etc., along with the experience in the field of

Vigilance/Intelligence/Training.

On the basis of the above

assessment, the Committee prepared a Panel consisting of three names suitable of appointment to the post of DG and IGP of Karnataka and forwarded the same to the State of Karnataka in terms of the judgment of the Apex Court in Prakash Singhs Case and no fault could be found with the process of selection, which they have undertaken and therefore, they contend that there is no merit in this writ petition.

FINDINGS OF THE TRIBUNAL 12. The Tribunal after considering the aforesaid

pleadings and material on record, formulated four points for consideration. Thereafter, referring to a plethora of judgments relied upon by the parties, the Tribunal held the Government of Karnataka or any of its organs has not placed the materials relating to the findings of the National Human Rights Commission in the official channels for reckoning any officer,

16

particularly the third respondent-ACRs. May be as the State was fighting a war against accountability, which they probably felt that they could not win, they did not include these adverse entries in the files of these officers, and they would have found it expedient not to place these materials before the concerned authorities. The Chief Secretary of the Government of

Karnataka had a solemn duty vested in him to be apprised of the factors and facts before he issued the integrity certificate of the concerned officials. But even this glaring incident in the professional career of the third respondent must have been reported to the Union Public Service Commission, UPSC seems to have assessed the merits of the candidates only on the basis of what was placed before it. The NHRC stipulations and findings were not apparently placed before the UPSC as the proceedings of the UPSC do not contain any mention or explanation of such adverse findings. Going with the reply of the UPSC, all that they examined was only the length of service of the candidates and their related professional experience and going by the general explanation they categorised persons on the basis of merit, with the applicant coming first in the list of merit. The UPSC has made the empanelment without noticing

17

the glaring inadequacies on the part of the third respondent. It is to be reflected with some regret that the first respondent deliberately suppressed the material facts from the UPSC even though the full picture was available to it and had been in circulation within itself for years together. Therefore, it must be held that Chief Secretary, the Home Secretary and the DPAR Secretary who were concerned with the matter throughout, had failed in their jurisdiction to place before the empanelment authority, the UPSC, the full picture regarding the third respondent.

13.

Dealing

with

the

question

of

commandant

responsibility, it held the third respondent claimed as he was only a Deputy Commander under Shri. Walter, an officer of Tamilnadu cadre, his responsibility is diminished, cases wherein his personal presence was detected. except in But, at

least in cases wherein his personal presence is acknowledged, his responsibility is acknowledged as still continuing. relative failure of The

the NHRC notwithstanding the State

Governments of Karnataka and Tamilnadu had a sacred duty cast on them to find out whether police excesses resulted in

18

such a large number of people losing their lives, women raped, several persons tortured and electrocuted and several innocent persons languishing in jail for years. As the panel found a

close nexus existing between certain undesirable branch of society along with the police rendering continuance of the civilised society difficult, if impossible, therefore, there was an unapparent juncture of unanimity in sweeping of the dust under the carpet. Such a sweeping the dust under the carpet has resulted in the concerned officers of Karnataka Govt. suppressing material facts from the gaze of the UPSC. The

UPSC, atleast with regard to the third respondent, did not have the benefit of actual scenario relating to the third respondent. The State Government seemed to have deliberately withheld the initial information of NHRC findings and the relative matrix from the critical gaze of the UPSC. Therefore, the empanelment itself of the third respondent is without benefit of the application of mind as deliberately integrity certificate was issued and crucial aspects of professional carrier of an officer were withheld knowingly by the officers of the State Govt. It has to be seen as to whether it is an innocent ignorance or as a part of deliberate manipulation, as the Chief Minister had

19

taken the empanelment at face value and had chosen the last among the empanelled as the more suited which is in his subjective satisfaction is correct according to him.

14.

It proceeded to hold the empanelment is vitiated on

the ground of non-disclosure of complete information, material and data whether favourable or adverse. The empanelment of the third respondent was without the UPSC having the benefit of full information his regarding the was third void respondent and and

therefore,

empanelment

invalid.

Consequently, the impugned order appointing him as the DG and IGP is also void. Accordingly it was quashed. Aggrieved by the said order both the State as well as the third respondent have preferred these two writ petitions.

RIVAL CONTENTIONS 15. Sri. S. Vijay Shankar, the learned Advocate

General of Karnataka, assailing the impugned order contended THAT the State Govt. has strictly followed the procedure prescribed by the Apex Court in Prakash Singhs case. They have prepared a list of IPS officers in the rank of DGP and sent

20

the same to UPSC along with their service records and other documents as required under law. Thereafter, the UPSC on

consideration of the aforesaid materials, empanelled three names among the five names sent to them and communicated the same to the State Govt. The Chief Minister in his discretion keeping in mind the suitability of the person to the said post has chosen the third respondent and appointed HIM.

Therefore, neither the empanelment is vitiated on any ground nor IS the appointment made by the Chief Minister contrary to law. As both of them have not violated the procedure

prescribed under law, this Court in its jurisdiction of judicial review cannot sit in judgment over the decision of both the UPSC as well as the Chief Minister.

16.

Insofar as the NHRC report is concerned, no doubt

it was not placed before the UPSC as it was not a relevant material. The very constitution of the Panel by the NHRC to enquire into the alleged atrocities committed by the task force is without jurisdiction. Further, the Panel in turn made Even

enquiries regarding claims which are barred by time.

after such enquiry, there is no indictment of the third

21

respondent of any of the charges. In fact, no further steps have been taken by the NHRC till today. Therefore, as the said report has no legal effect, it was not placed before the UPSC. That empanelment would have been vitiated for relying on irrelevant consideration if the report had been placed before UPSC. Therefore, there is no illegality in the order of appointment of the third respondent which could have been found fault with by the tribunal. order of In fact, the tribunal after setting aside the virtually has issued a direction

appointment

appointing the applicant in place of the third respondent which amounts to the Tribunal amending the statute for which it had no jurisdiction.

17.

Insofar

as

the

appointment

by

the

State

Government is concerned, it is the prerogative of the Chief Minister to select a person among the empanelled candidates in whom he has trust and confidence which cannot be challenged in a court of law. Therefore, seen from any angle, there is no illegality in the appointment and the Tribunal has exceeded in its jurisdiction to interfere with the valid and legal order of appointment.

22

18.

Sri. P.S. Rajagopal, the learned Senior counsel

appearing for the third respondent contended that in the application filed by the applicant, he had not challenged the empanelment. Therefore, the third respondent had no

opportunity to meet the case of the applicant. His challenge was only for the appointment of the third respondent. It is

settled law that it is the prerogative of the Chief Minister, to select one among the empanelled list and even a person junior could be appointed if in his opinion is suitable for the said post. Therefore, no judicial review is permissible against such appointment. Further, he contended the third respondent was in the said task force from 18.2.1993 to 28.2.1996 and the complaints pertained to the public was anterior to his assuming charge of the STF operations and therefore, the said NHRC reports has no bearing insofar as he is concerned. Even otherwise the report on which reliance is placed by the applicant is only an interim report, final report is not yet submitted, no follow-up action is recommended by the NHRC and therefore, this interim report is not at all relevant to be considered by the UPSC at the time of empanelment. He

further contended Section 36 of the Human Rights Protection

23

Act, 1983, provides a limit of one year for taking cognizance of the complaints from the date on which the act constituting violation of human rights is alleged to have been committed and all the complaints which were directed to be investigated were all clearly barred by time and therefore, the report submitted by the NHRC has no value in the eye of law. The report in question is only an interim report and not a final report, it is not an actionable material. He also pointed out

that the very constitution of the Panel is one without jurisdiction and the committee has exceeded its jurisdiction in enquiring into matters beyond the order of reference.

Therefore, the said report has no value in the eye of law, as such, it was a totally irrelevant material to be considered by the UPSC. He submitted a comparison of the service records of the applicant and the third respondent which clearly discloses that the third respondent has shouldered more sensitive

responsibilities and that his work has been acclaimed not only by the State of Karnataka, but also by the neighbouring State of Andhra Pradesh. Twice, he has been awarded gallantry

award by the President of India and in all respects he is more meritorious than the applicant. Seniority is no consideration

24

for appointment, merit is the consideration, his appointment is legal and valid and do not suffer from any infirmity.

19.

He also submitted according to the Rules, UPSC

has to review the records of a candidate 10 years prior to the date of consideration. The incident in question which is about 18 years ago, is not a matter which could be taken note of by the UPSC. Though the report is on record, though the third respondent is not indicted at all, the tribunal proceeds on the basis that he has been indicted and goes to the extent of holding that he is not suitable to hold the said post. The

finding is without any basis, exfacie illegal and therefore, liable to be set aside.

20.

Per contra, the learned counsel for the applicant,

Sri Navakesh Batra, supporting the impugned order contended that not only did the State and the third respondent not place the report of Justice A. J. Sadashiva before the UPSC at the time of empanelment, but the said report is not made available either to the Tribunal or to this Court. The letter which is produced along with the application written by a non

25

Governmental Organisation Vimochana clearly sets out the atrocities committed on two women. In fact, the evidence

recorded by the Commission in respect of those two women would clearly show the nature of torture and the humiliation they have suffered at the hands of the task force. The Panel and NHRC found that their case is true, and the police men were guilty of torture on those two women. The Government accepting the responsibility has paid compensation to both of them. If only the report had been produced, it would have

clearly shown who is at fault, who is guilty and who is to be held responsible. He further submitted after the report was

sent to the State as well as to the DG and IGP of Karnataka, he sent his remarks/ comments para-wise in respect of the findings recorded by the Committee. The same was copied by the State. Both are produced on record. The said parawise

remarks clearly shows the recommendation of the Panel that the STF force should not have tortured and ill-treated those villagers, rather they should be treated with dignity and there should be discipline in the task force. The said

recommendation is accepted by the Government. Further, the recommendation that follow-up action should be taken is also

26

accepted. Similarly, the said comments shows that the third respondent was the commandant heading the STF of

Karnataka. He or his successors should have initiated action against the persons who are guilty of such torture for which they agreed, but till today no action is taken. Though the

NHRC over ruled the technical and legal objections raised by the State and the police authorities to the report of the committee, Government accepted the recommendations. They admitted the liability and have paid compensation to each and every victim of the atrocities in terms of the order passed by the NHRC.

21.

He further contended that it is too late in the day

for the State and the third respondent to contend that this piece of material is not a relevant material to be placed before the empanelling committee. The question before the

empanelling committee was whether persons to be empanelled are fit and suitable persons, to head the State police force. If only these cases of human rights violation had been brought to the notice of the UPSC, as a responsible authority, they would not have empanelled the name of the third respondent at all.

27

He further submitted the haste with which this empanelling committee conducted its proceedings and concluded the matter clearly demonstrates total non application of mind which is not expected of a specialised agency as that of UPSC. From the

records it is clear 10 years service records of five candidates were placed before this committee. The only sitting of the

committee was 30.11.2011. They met between 11.00 a.m. and 2.00 p.m. i.e. for a span of three hours. They are said to have looked into the records of 5 officers and empanelled three

persons. The second person in the list has intimated the State of Karnataka his unwillingness to come back to the State as he was working in the State of Mizoram and therefore, the State has excluded his name from consideration but, in the empaneled list though the committee consists of the Chief Secretary of the Karnataka as well as the DGP and IG of Karnataka who had knowledge of these things still included

his name in the empanelled list. It only shows the manner in which the proceedings of the UPSC has been conducted which in turn clearly shows the total non-application of mind. Admittedly, it is not in dispute that this NHRC report was not produced before the UPSC and therefore, they had no occasion

28

to consider the findings recorded by the Panel insofar responsibilities of the commandant of the STF of Karnataka is concerned. In fact, if the entire report of the Panel had been made available, probably it would have shown the involvement of the third respondent directly in the commission of these atrocities. That is why the said document had been kept back. Therefore, the court has to draw an adverse inference.

22.

Similarly, the lightening speed in which the Chief

Minister has proceeded to pass the order, when his Chief Secretary and the DGP and IGP were still in Delhi, without a proper note being put up before him, clearly shows again total non- application of mind which is required from such a constitutional authority. No doubt, it is the prerogative of the Chief Minister to select one among the empanelled list and it is open for him to select a junior in preference to a senior. Such absolute power which is vested in him, has to be exercised in a reasonable manner, fair manner which is not forthcoming in the instant case. Therefore, he submits the empanelment of

the UPSC is vitiated for non consideration of the relevant material. Similarly, the impugned order passed by the Chief

29

Minister is also vitiated for the same reasons and therefore, he submits the order passed by the Tribunal interfering with such illegal orders is proper and does not suffer from any legal infirmity which calls for interference.

23.

The learned counsel appearing for the fourth

respondent UPSC, Sri P.S. Dinesh Kumar, contended that they are outsiders to the selection process. They are brought into the scheme of things because of the judgment of the Apex Court in Prakash Singhs case. When a request was made by the State for empanelment they brought to the notice of the State, that in terms of the judgment of the Apex court, the person who is already functioning as DG and IGP of Karnataka though he is reaching the age of superannuation on

30.11.2011, he is entitled to be continued in the said post for a period of two years from the date of appointment and as such, there is no vacancy and consequently, no empanelment can be made. But, the Government of Karnataka wrote back saying they are not agreeable for the said proposal made by the Apex Court. They have filed affidavits and they have moved the

court for modification of the order, the matter has not come up

30

before the Court. In those circumstances, the State contended that no leave of the Apex Court is required to go ahead with the appointment. Therefore, they requested the UPSC to convene a meeting for the purpose of empanelment. Left with no choice, in obedience of the order of the Apex Court, they called a meeting on 30.11.2011, considered the service records of the five candidates which was forwarded by the Government. After taking into consideration the various aspects and the law laid down by the Apex court in Prakash Singhs case, they selected three names and communicated the same to the State Government. They have followed the procedure prescribed by the Apex court in Prakash Singhs case and it cannot be found fault with.

POINTS FOR CONSIDERATION 24. In the light of the aforesaid facts, material on

record and the arguments of the learned counsel for the parties, the under :points that arise for our consideration are as

31

(a)

Whether the report of the Justice Sadashiva

Panel and NHRC report/order concerning the third respondent constitutes relevant and material

information and data, to be considered at the time of his selection/ empanelment by the UPSC?

(b)

Whether

the

empanelment

of

the

third

respondent by UPSC without considering the report of the Panel and NHRC is vitiated and consequently, the order of appointment appointing the third

respondent as DG and IGP of Karnataka is also vitiated?

PROCEDURE FOR EMPANELMENT 25. The process of empanelment as well as the

appointment of the third respondent is not made in accordance with any statutory provisions. It is made in accordance with the directions issued by the Apex court in Prakash Singhs case. Therefore, before we go into the validity or otherwise of the process of empanelment and the process of appointment of the third respondent, it is necessary to see what are the

32

directions issued by the Apex Court in Prakash Singhs case, and what is the procedure to be followed by the UPSC as well as the State.

26.

The law which govern the policemen in the country After independence despite

is the Indian Police Act, 1861.

radical changes in the political, social and economic situation in the country, the condition of the Indian police was not given much needed attention. Therefore, the Government of India on 15.11.1977 appointed a National Police Commission (NPC) for fresh examination of the role and performance of the police as the law-enforcing agency to protect the rights of the citizens enshrined in the constitution. The terms and reference of the Commission were wide ranging. The terms of reference

interalia required to examine the role, duties, powers and responsibilities of the police with reference to the prevention and control of crime and maintenance of public order; evaluate the performance of the system; identify the basic weaknesses or inadequacies; examine if any changes are necessary in the method of administration, disciplinary control and

accountability; inquire into the system of investigation and

33

prosecution; the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity and for other purposes. After examination of those aspects the commission has submitted so far several reports. However, the

recommendations of the NPC are not implemented. Therefore, the writ petitions were filed in the Apex court for directions to the Government of India to frame a new Police Act on the lines drafted by the commission, still nothing has been done.

27.

The Apex Court felt having regard to the gravity of

the problem, the urgent need for preserving and strengthening the rule of law, total uncertainity as to when police reforms would be introduced in spite of recommendations and reports by the committees, it thought it fit to issue appropriate directions for immediate compliance so as to be operative, till such time a new model Police Act is prepared by the Central Government and/ or the State Governments pass the requisite legislations. Accordingly, they issued directions for setting up of State Security Commission, minimum tenure of DG of police and other officers, separation of investigation, Police

34

Establishment Board, Police Complaints Authority, National Security Commission etc. However, as we are only concerned with the selection and minimum tenure of DGP only that portion of the direction is extracted hereunder:-

Selection and minimum tenure of DGP. (2) The Director General of Police of the State

shall be selected by the State Government from amongst the three senior most officers of the Department who have been empanelled for

promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relived of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

35

28.

Therefore, by virtue of the direction issued by the

Apex Court, the responsibility of empanelling for promotion to the rank of Director General of police of the State vests in the UPSC. It is relevant to notice that till this direction was issued, it is the State Government which was considering who should be appointed to the said post. Therefore, the Union Public

Service Commission would act as a selection committee which would empanel three officers amongst the senior most officers of the department of the same rank. For the said purpose they are expected to take into consideration:-

a) Length of service; b) Very good record and c) Length of experience

29.

Here itself we want to point out the word used is

very good record not very good ACRS i.e. the annual confidential report/performance appraisal reports.

30.

The second direction given is, once among the

persons empanelled by the UPSC, the State Government

36

appoints a person as Director General of Police, he shall have a service of two years from the date of the said appointment, notwithstanding the fact that before the expiry of two years his date of superannuation occurs. The third direction is though the tenure of the Director General of police is thus fixed as two years, it does not prevent the Government from relieving him of his duties if he is convicted in a court of law for a criminal offence or in a court of offence or is incapacitated in discharging his duties. The removal has to be done of course in consultation with the said security commission.

31. the

This is the procedure which is now prescribed by judgment which is being followed in the appointment of

DGP and IG of Karnataka. One of the controversies is the very act on the part of the State calling for empanelment on the assumption that the then incumbent would relinquish his office on 30.11.2011 itself is not correct. Sri. Achut Rao reached the age of superannuation on 30.11.2011, but he had not completed two years of service from the date of his appointment. In terms of the Supreme Court order, he was

entitled to continue till the expiry of two years. This portion of

37

the Apex Court order was not accepted by the State.

They

made their intentions clear to the Apex Court. Still the Apex Court did not accept their contention. Applications are filed

before the Apex court for modifications/directions not to insist on the said condition. No orders are passed. However, the

said Sri Achut Rao agreed to demit office on 30.11.2011 which is clear from the office note. He also attended the meeting on 30.11.2011 convened by the UPSC as he was also a member of the UPSC. That is how the vacancy arose and appointment

was to be made.

32.

It is not in dispute that 5 IPS officers in the rank of

DGP were available in the Karnataka Cadre. Sri Lalrokhuma Pachau, IPS was working on deputation to Mizoram

Government who in fact was not interested in coming back to Karnataka which he has made it clear in writing. Another

among them Sri Kuchanna Srinivasan retired on 31.10.2011. In his place one Sri. R. K. Dutt, IPS, was given promotion and his name was also included as one among the eligible officers. An office note was put up stating that a panel of names is to be prepared and placed before the UPSC for empanelment. In

38

fact, the office note on 28.10.2011 discloses that the selection for the post of DGP and IGP by the Honble Chief Minister may be delayed since the meeting of the UPSC will be held on 30.11.2011. Thereafter, the State has to receive the

proceedings of the meeting and select one among the IPS officers from UPSC list. Since Sri. Achuth Rao is retiring on 30.11.2011, meeting is held on the same day and due to shortage of time it is necessary to appoint an officer as DG and IGP on ad-hoc basis as the DG and IGP (Head of Police force) Karnataka. For the time being an approval of the Chief

Minister was sought from one among the four officers in the rank of DGP to be put in additional charge. However, no such order was passed. In fact, on 19.4.2011 the Government of

Karnataka addressed a letter to the Secretary of the UPSC forwarding the names of four IPS officers in the cadre of the DGP. However, at the insistence of the UPSC, even the records of unwilling candidate Sri. Lal Rokomov Pachav, were also sent. Admittedly, in the case of the third respondent, the NHRC report was not sent for consideration by the State Govt. It is in this context i.e. whether the said report is relevant and

39

material for not for being placed before the UPSC for consideration, has to be decided.

REPORT OF JUSTICE SADASHIVA PANEL AND REPORT/ ORDER OF NHRC 33. The case of the applicant is, the said report which

has recorded a finding that the STF Karnataka commanded by the third respondent is guilty of committing atrocities on villagers and in particular women folk, mostly comprising tribal people was a relevant material which ought to have been placed for consideration before the UPSC. The State has taken a definite stand if that report had been placed before the UPSC and UPSC had taken into consideration the said report, it would have been a case of empanelment becoming void, for taking into consideration irrelevant material. Therefore, the

question that arises is, whether the report is a relevant material or an irrelevant material? Unfortunately, the said

report is not at all produced before the UPSC. It is not even produced before the tribunal or before this court. The fact that the State is in possession of the said report is not disputed. The applicant is not in possession and is not entitled to a copy

40

of the said report. The third respondent now is in possession of the said report. The said report is neither produced before the Tribunal nor before this Court. As it was not produced

before the UPSC the question of UPSC perusing this report did not arise. Therefore, the contents of the report is a mystery. But from the material on record, we can have a glimpse of what the report is, what are its findings and what are the objections of the State and the third respondent to the said report, how the NHRC has treated the objections as well as the report and the relief the NHRC has given to the victims of the atrocities committed by the STF. We are able to gather the following

facts from the proceedings/order of the National Human rights commission dated 15.1.2007.

34.

A Joint Special Task Force (STF) was set up by the

State of Karnataka and Tamilnadu to apprehend the notorious forest brigand and sandalwood smuggler Veerappan. The NHRC received a number of representations from some non

Governmental association like Tamilnadu and Society for Community Organisation members and also from individuals including that of Dr.S.Ramdass of PMK, Justice Dr. D. M.

41

Chandrashekar retired Chief Justice of Karnataka,

Smt.

Govindamma and Shri. Ponnuswamy, alleging large scale harassment to the villagers and tribals in the border areas of the two states and the gross violation of the human rights by the members of the two special task forces. The NHRC took cognisance of the complaints and after consideration of the reports submitted by the DG [investigation], felt that a detailed enquiry was required. In the proceeding held on 18.6.1989,

they constituted a panel of two eminent persons i.e. one from the judiciary and other having experience at the highest level of police to look into all relevant aspects of the allegations that have been made in the complaints. They also decided that the said panel will recommend to the commission the actions that should be taken to redress their grievance that are found to be justified. Accordingly, on 20.6.1999 the commission

constituted a panel of enquiry with Honble Mr.Justice A.J.Sadashiva, Former Judge of the High Court of Karnataka as Chairman and Sri.C.V.Narasimhan formed director of CBI as member to enquire into the matter and make its

recommendations to the commission.

42

35.

The panel held its first meeting on 15.7.1999 at It held

Bangalore and determined the modalities of enquiry.

sittings at Gobichettipalyam and Kolathur in Tamilnadu and Chamarajnagar, Mysore, Bangalore and M.M.Hills in

Karnataka. Statements of 243 persons including 193 alleged victims, 4 representatives of the NGOs and 38 police officers were recorded by the panel during enquiry. The statements

were recorded in the presence of all persons concerned and adequate opportunity of cross-examination of the witnesses were given to all concerned. In the course of enquiry, even

persons who had not filed complaints, who were the alleged victims of the STF sought permission to depose before the panel. Both the DGP of Karnataka and DGP of Tamilnadu

raised objection before Justice Sadashiva Panel with regard to the scope of enquiry to be held by the panel. The Panel

considered the said objections and held the procedure to be adopted by the Panel is akin to that available to the commission appointed for recording evidence by a Civil Court wherein the evidence produced is recorded subject to the objections raised to its admissibility which had to be later decided after hearing the parties by the concerned court. It

43

was made clear that the merits of the objections raised before the Panel could be considered and decided by the NHRC on receiving the report of the Panel together with the evidence recorded by it. Therefore, Justice Sadashiva Panel did not confine the enquiry to the case registered with the NHRC, but also covered all persons whose human rights have been violated. After appraisal of the evidence and submission of the oral and written evidence of the public and the police officers, Justice Sadashiva Panel submitted its report on 1.12.2003.

36.

We do not have the report of the panel before us.

However, in the order passed by the NHRC there are references to the report and therefore it is necessary to extract those passages from the said order to know what that report contains and to decide whether it was a relevant material to have been placed before the UPSC. In para 6 of the said order, the NHRC has observed as under : -

6. . The panel concluded that one woman became a victim of repeated rape, three women were subjected to assault, application of electric current and outrage of modesty, seven persons had

44

suffered illegal detention assault and electric shock, three persons suffered permanent disability as a result of torture, eleven persons were unlawfully detained for more than a month, rendered naked assaulted and given electric current before they were formally arrested and booked under TADA, twelve persons were

unlawfully detained in camps for a period of 20 days and below and subjected to torture before formal arrest and prosecution under TADA and fifteen TADA detenue continued to languish in jail for many years till their acquittal for non-

consideration of their cases by Review Committee. The panel also found that one person was taken into custody by STF but did not return and 36 persons had been killed in suspicious encounters by STF.

37.

Then the NHRC considered the opposition of the

two States to the Panel not confining its enquiry only to cases referred by NHRC and for including in the enquiry fresh complaints. The said objection was answered by the NHRC at para 7 of the order as under: -

7.

The Commission has considered the reports

submitted by Justice Sadashiva panel and it sees

45

no reason why the report should not be accepted. The Commission is not inclined to accept the submission made on behalf of the two states that the inquiry panel should have confined its inquiry only to the cases referred by NHRC. The primary concern of the Commission is to protect the precious human rights of the citizens. If the inquiry panel headed by a former judge of a High Court has found on the basis of reliable and acceptable material that the human rights of some other persons who could not approach the Commission were also violated, there can be no reason as to why the Commission should not take cognizance of such violations. If the inquiry was to be restricted only against 15-20 persons, it would be great travesty of justice and negation of human rights of the tribals and others living in the area of anti Veerappan operations by the Joint Special Task Force.

38.

In fact, by an order dated 23.2.2004 of the NHRC,

the report of Justice Sadashiva Panel was sent to the Government of Karnataka and Tamilnadu for their comments. The two Governments submitted their responses and raised some technical objections. In fact in W.P. No. 9665/2012 filed by the third respondent, he has produced as Annexure-R4-the

46

objections filed by the Director General and Inspector General of Police on 30.4.2005 and para wise comments. Annexure-L is the para wise comments submitted by the State Government. A perusal of both shows the Government has towed the line of the police department and it is a replica of the comments of the police. At this juncture it is pertinent to point out that, when

the third respondent in his capacity of Director General and Inspector General of Police, being in possession of these comments taken from his office, is able to produce them as annexure to his Writ Petition, he has not chosen to produce the copy of the report which is in his possession. Therefore, we are constrained to go by what is stated in the order of the NHRC about the report of the Panel.

39.

As could be seen from the order both the

Governments took up a contention that the inquiry panel had exceeded its brief and enquired into complaints which were not even complained to it. To consider the said question, the

NHRC took up that issue for consideration. In order to ensure expeditious disposal of the case, the Chief Secretaries of Karnataka and Tamilnadu were requested to attend the NHRC

47

on 7.12.2006 for discussions. Accordingly, Sri L.K.Trikpathi, Chief Secretary, Government of Tamilnadu and Sri A.K. Aggrawal, Additional Secretary, Karnataka appeared before The NHRC impressed upon

the Commission on 7.12.2006.

them that in dealing with the cases of violation of human rights, the approach should be one of respect for precious human rights, compassion and not technical. If there had

been violations of human rights, such violations should be properly redressed and attended to. A technical or indifferent

approach to such infraction of human rights, that too by a benevolent State, where welfare of the State is paramount may breed discontent and contempt for the rule of law amongst the populace. It is heartening to note that those gentlemen who appeared before the NHRC, conveyed these sentiments to the respective Governments and those Governments appreciating the magnitude of the problem gave up these technical grounds. This is clear from what the NHRC stated which is as under : -

8. It is a matter of satisfaction that the Governments of the States of Karnataka and Tamil Nadu paid heed to the advice of the Commission. The Chief Secretary of Tamil Nadu

48

and Addl. Chief Secretary of Karnataka conveyed to the Commission that both the governments are ready and willing to respect the

decision/recommendations to be made by the Commission with regard to interim relief to the victims of atrocities alleged to have been committed by joint Special Task Force. They both informed the Commission earmarked a that sum their of governments crores each have for

Rs.5

disbursement to the victims of atrocities committed by STF or next of kin of the deceased as the case may be, based on recommendation of the

Commission. The Chief Secretary, Tamil Nadu further informed that the Government of Tamil Nadu had already disbursed a sum of Rs.20 lacs to 12 victims/next of kin of the deceased out of 38 persons recommended by Justice Sadashiv panel. Sri L.K. Tripathi, Chief Secretary, Government of Tamil Nadu and Shri A.K. Aggarwal, Additional Chief Secretary, to the Government Commission of that Karnataka both the

conveyed

government are ready and willing to respect the decision/recommendation to be made by the

Commission with regard to the interim relief to the victims of atrocities.

49

40.

Thereafter, the NHRC took note of the problem

faced by the State and the police, the difficult terrain in which the police were expected to discharge their duties, the number of lives of brave police men that were lost and was very

sympathetic to their plight. But, it held as under:10. . At any rate atrocities unrelated to operations of JSTF cannot be justified. The JSTF personnel had to act skillfully and not brutally. It is a matter of record that 66 persons were killed in encounters. Justice Sadashiva enquiry panel has found that 36 persons lost their lives in suspicious encounters. Human life is precious and no body is permitted under the law to take it otherwise than in accordance with the procedure established by law. The persons who were killed in suspicious

encounters were all tribals or poor labourers. Their deaths must have brought their families on the verge of starvation. The death of one must have meant misery and suffering to many other

dependent on him.

Therefore, the Commission

thinks it appropriate to recommend Rs.5 lakhs each as interim relief to be paid to the next of kin of the persons who were killed in suspicious encounters to be found at serial No.54 to 89 in Annexure-IV of Justice Sadashiva panel report. Underlining by us

50

41.

Then it took up the case of atrocities against

women and this is what the NHRC has stated at para 12 :-

12.

Rape is a heinous crime against

society. It is directed against the purity of body, mind and soul of the victim and leaves on indelible stigma in her life. She is ridiculed by her own kith and kin. Sometimes she is even ostracized. In other words rape results in the social death of the victim. Therefore, the victim of rape has also to get interim relief at par with the next of kin of those killed in suspicious encounter. The enquiry panel has found in this case that the victim was taken to different places and subjected to sexual assault by police officers. It can therefore be presumed with

reasonable degree of certainty that her devastation continued over a considerable period of time.

42.

Then it also considered the torture meted out to

women and it observed as under : -

14.

According to the

findings of Justice

Sadashiva enquiry panel, three females were detained for 15 days, disrobed, assaulted and subjected to application of electric current.

51

Disrobing of a woman may fall short of rape but it certainly brings untold ignominy and suffering to her. Therefore, these three women should receive interim relief of Rs.2 lakhs each. "

43.

Then it proceeded to deal with the torture given to

men, illegal detentions and also awarded compensation to them. Thereafter, at para 18 it has listed the names of 89

victims with their full addresses and awarded interim relief. The first victim is Smt. Lakshmi, wife of Rajendran

Lakkampatti , Kolathur Hobli, a victim of rape, she was awarded Rs.5,00,000/-. In the absence of any material and

the report being not available, we do not know what her say is in the matter. But, in the record we have a letter addressed by Vimochana, a Social Organization, to the Government of Karnataka, where they have set out the statement of two other persons to who whom compensation has been paid. That

throws some light about the nature of investigation by the STF Force headed by the third respondent. One Mrs. Erammal,

wife of Javariah - MW1, filed an affidavit on 28.1.2000 before

52

the panel. under : -

Her statement is set out in the said letter as

She is a widow with no children. She has stated that about 4 years before the date, Mr. Shankar Bidari came to her house and took her to meet her brother who she was told was in the police custody. She was taken to Dimbam police camp and beaten with a lathi by policemen there due to which she lost sight in her right eye. Later she was shifted to Mahadeswara Hills Camp where she was tortured and stripped naked, blind folded and raped. She further states that 3 days later Shankar Bidari arrived and current was passed through clips attached to parts of her body. Eight days later, Mr. Shankar Bidari

arrived again and she was asked to leave.

44.

Then we have the affidavit of Nagi, wife of

Chikkajavanan of Kamadipuram, Erode, dated 20.1.2000 who was examined as MW5. Her version is extracted as under:That six months after her husband was taken away by STF, the police arrived and promised to take her to her husband. She was taken to MM Hills camp Mr. Shankar Bidari was

53

there. There she was blind folded and Mr. Bidari interrogated her about supplies to Veerappan. When she denied the allegation, Mr. Bidari was angry and passed current through different parts of her body. Thereafter she was gang raped. Her elder sister who had accompanied her was also raped.

45.

All of them have been cross-examined. The Panel

has given its report. We do not have the advantage of seeing that report. It is denied to this Court. In this context, from the order of the NHRC we find the name of Erammal is at Sl. No. 2 and she was paid Rs.2,00,000/- as interim compensation. Smt. Nagis name is found at Sl. No.4 and she is given Rs.2,00,000/- as compensation. It is in this background let us see what is the para wise remarks given by the Inspector General of Police and adopted by the Government as reflected in Annexure-R4 and Annexure-K. After the para wise remarks, clause (viii) deals with responsibility of Commanders of STF. The recommendation of the panel was as under: -

(viii)

We wish to underline the need for

enforcing strict discipline in the conduct of police personnel engaged in such operations, particularly

54

in situations where they have to interact with civilian population. The commanding Officers at higher levels must accept their personnel

responsibility to ensure propriety of conduct of the entire personnel under their command in this matter. The Commanding Officer should not rest

content with remote and indirect supervision in this regard. They should issue detailed orders to all

the personnel in this regard, and strictly enforce the orders during operations.

46. under: -

The comments of the IGP as well as the State is as

This recommendation may be accepted.

Strict

orders are already issued in this regard and the same will be reiterated.

47.

It is unfortunate, after accepting the commission

report, paying compensation in terms of the report, before this Court, the Government of the day forgetting the past, is attacking the said report with all possible technical grounds and we are called upon to decide these technical points in this ancillary proceedings. The third respondent, after

occupying the present post, seem to have forgotten what has

55

been said in this regard 15 years back. Before this Court and the Tribunal they are disputing the responsibility of the Commandant Officers, responsibility of the State and by characterizing this report as one without jurisdiction, barred by limitation, is giving an impression that it is not worth the paper on which it is written. According to them, it is not a document which is of any importance to be placed before the UPSC and strangely the State contends if it had been produced before the UPSC and if UPSC had acted on this report and did not empanel the third respondent, then it would have vitiated the empanelment on the ground of consideration of an irrelevant material. One thing is certain. The Government of the day and the third respondent are afraid of the truth. They do not want this Court to know the truth. Therefore, now we are convinced, deliberately the said document i.e., report of the Justice Sadashiva Committee Panel has been kept back from the Tribunal as well as before this Court.

RELEVANT AND MATERIAL 48. Now, the question is whether this report would

have had any bearing in the empanelment by the UPSC. The

56

argument was in the first place the third respondent was not indicted. Secondly, this is an incident which had happened 15 years prior to the date of consideration of the claim of the third respondent. NHRC has not taken up any follow up action nor initiated any action against any policemen, in particular third respondent. It is also barred by time. it is without jurisdiction. The panel members have exceeded their jurisdiction.

49.

Now it is not in dispute that the record of the third

respondent during the period he was the Commandant of the STF, Karnataka, was placed before the UPSC for consideration of his claim. Not only the State gave all the relevant

particulars, they also forwarded a bio-data prepared by the third respondent himself, a copy of which is made available to us from the file of the Government. Para 7 of the bio-data

prepared by the third respondent, which was part of the records placed before UPSC at the time of consideration of empanelment reads as under:7. In February 1993, he was posted as

Commander, Task Force, Malaimadeshwara Hills to trace and arrest the notorious sandalwood smuggler, elephant poacher and killer Veerappan

57

and his gang members when the force was totally demoralized after repeated terrorist acts committed by the gang. In this challenging assignment, he

worked hard in a systematic manner with zeal, determination, courage and gallantry in extremely difficult circumstances in hostile and difficult terrain for a period of three and half years. He led his force from the front against the gang in a number of encounters. The gang which was

having more than 150 members, 135 firearms and 3 tonnes of explosives in 1993 was decimated to 5 members by April 1996. Under his leadership, 60 gang members were killed in various encounters and 126 gang members and harbourers were arrested and 58 cases were registered and

investigated and charge sheeted. Four of the arrested gang members were convicted to death sentence by the Supreme Court. He recovered more than 3 tonnes of explosives and 126 fire arms. Fortitude, courage, gallantry, investigation,

intelligence and leadership skills, displayed by him in this operation are exemplary and unprecedented in the annals of the Indian Police. For his outstanding work, the Government of Karnataka rewarded his team with a cash reward of Rs.8 crores and a personal reward of Rs.160 Lakhs. Underlining by us

58

50.

Taking into consideration this exemplary service

rendered by the third respondent, it appears the President has awarded Gallantry award to him. Certainly for the aforesaid

services rendered by the third respondent he is properly rewarded and acclaimed. This is the positive side of the story and this was placed before the UPSC in support of his claim for empanelment. Certainly this is a material fact which the

selection authority should take note of at the time of empanelment. The question is, when he was a Commandant of a Task Force for a period of 3 years, when he claims under his leadership 60 gang members were killed in various encounters and for the fortitude, courage, gallantry,

investigation, intelligence and leadership skills, displayed by him in the said operation which are exemplary and he is

unprecedented in the annals of the Indian Police,

personally rewarded a sum of Rs.160 Lakhs, whether only that positive aspect of his activities should be taken note of or his entire conduct for the period is to be taken note of. If the

positive aspect and a particular facet of his activity is a relevant factor for consideration for empanelment by UPSC, how

59

another facet of the very same person in connection with the services rendered during the said period which included how he conducted investigation, how he commanded the force which were under his control and his leadership skills cannot be considered. How it ceases to be relevant and becomes

irrelevant. We have set out the facts above. We have also set out what the report of the Panel contains and what is the finding of the NHRC. What we can usefully gather from the

aforesaid material is there was an allegation against the STF personnel of Karnataka that they are committing atrocities on the innocent villagers of 48 villages which are adjoining the forest or inside the forest. The allegation is, they committed The record

murder, false encounter, rape and torture.

discloses 20 complaints were lodged with the National Human Rights Commission. No action was taken. It is only when Dr. Justice D.M. Chandrashekar, the former Chief Justice of this Court took up the cudgels and lodged a complaint, the moral authority which he was yielding in the society could not be resisted and therefore, the NHRC was forced to swing into action. It is only then they constituted the Panel consisting of

Justice A.J. Sadashiva, the former Judge of the High Court of

60

Karnataka and Sri Narasimhan, former Chief of C.B.I to go into the allegations. As is clear from the order passed by the NHRC, they recorded the statement of 243 persons including 193 alleged victims, 4 representatives of the NGOs and 38 police officers. The statements were recorded in the presence of all concerned and adequate opportunity of cross-examination of witnesses was given to all concerned. Not only they went into this 20 complaints lodged with the NHRC but went into the complaints during the said period and even subsequent period which act has now been upheld by the NHRC and accepted by the State Government. After the report was submitted, the NHRC directed the panel to submit a copy of that report to the Governments of both Tamilnadu as well as Karnataka for their comments. They gave their comments as set out above. They also accepted the said recommendations. Along with the

comments they had also raised legal and technical objections. That is why the NHRC was called upon to deal with those legal issues which were considered, some issues were decided against the State which they did not challenge and some issues were given up by the States. At this stage it is pertinent to

point out the order is passed by the NHRC which was presided

61

by

a former Judge of the Supreme Court of India Justice consisting of Justice Bhaskar Rao, the

Shivaraj Patil and

former Chief Justice of High Court of Karnataka and two other eminent persons who are in the field of protecting human rights. The said order has been obeyed by the State.

Compensation is paid to the victims. The State has accepted the responsibility. But, the third respondent and the present day Government is not prepared to respect either the report of the Panel or the NHRC report. The fair and magnanimous

attitude of the State Governments of the relevant day, in owning the responsibility and compensating the victims is not appreciated by the Government of the day. Probably, over the years those great values appear to have diluted, even in the matter of Governmental functioning and collective

responsibility. The Panel in its report has categorically stated though they recorded a finding that atrocities are committed, they were unable to identify the perpetuators of those acts. They were enquiring the atrocities after several years.

Therefore, they have not indicted anyone including the third respondent. That only shows the fairness of the said report

and the application of judicial mind and a finding recorded

62

purely based on material evidence placed before them and not on the basis of surmises and conjunctures. From the report it is now clear atrocities are committed by the policemen. The State and the police in their comments categorically have stated that they would take follow up action. It is not in

dispute till today they have not identified the perpetuators of those crime and no action is taken against police man. one individual

On the contrary, the argument before us is the

NHRC has not passed its final order, NHRC has not initiated any action and therefore it is to be presumed that the contents of the report has no value and NHRC did not find it necessary to take any action because there is no human rights violation. Such argument will only show the respect and concern the persons holding high offices have, and also reflects upon their mental attitude. As stated earlier, it is heartening to note the a

sensitivity demonstrated by the Government of that day,

democratic Government in a welfare State which came forward and compensated the victims. They also compensated the

policemen and the third respondent, in particularly for his bravery by rewarding him Rs.1.60 crores. When compared to that, the amount paid to these victims is niggardly. But, the

63

same sensitivity is not seen in the third respondent, in particular, concern for women-hood, the human rights, safety and welfare of these illiterate, poor and tribal people who are residing in remote corners adjoining the forest or inside the forest.

51.

The question is, whether a person of such a bent of

mind is suitable to head the State Police Force, which is expected to maintain law and order, safety and welfare of women and children and in particular, the people belonging to socially backward communities, tribals, illiterate and poverty stricken, hapless masses in rural areas. Whether their interests is safe in the hands of such a person. Is it not a fact which the UPSC has to consider before empaneling the names which are given to head a State Police Force? Therefore, we are of the view when the service records of the third respondent was placed before the UPSC which included his tenure as a Commandant of the STF from 1993 to 1996, for 3 years and when he has given a graphic description of what he has done and how that service has been considered and he has been duly rewarded both by the President and the State, it was necessary to place

64

before the UPSC the entire service rendered by him during the said period and not, only one side of it or a part of it. What is placed before the UPSC is a relevant material. The factual

finding contained in the report of Justice Sadashiva panel and the order passed by NHRC, which also refers to the very same period is a material aspect which ought to have been placed by the Government before the UPSC. In the absence of that

material, the assessment of the suitability of the third respondent by the UPSC to be empaneled, to head the State Police force is vitiated. To err is human. We learn lessons in life. It is quite possible in the atmosphere in which they were functioning, policemen have indulged in such acts though in normal circumstances they would not have indulged.

Therefore, atleast they should have the decency of regretting such incident. That is not forthcoming from the third

respondent. On the contrary, in the statement filed before the Tribunal, after referring to the letter written by Vimochana Forum for Womens Rights, to the Government of Karnataka, where they have made allegations in particular against the third respondent, this is what he says in reply at para 12 of the written statement: -

65

12. It is further submitted that regarding the doctrine of the command responsibility, it is submitted that, in the meeting held between the Chief Ministers of Karnataka and Tamilnadu on 10th April, 1993 at Fort St. George, Chennai, it was decided that the Karnataka and Tamilnadu Task Forces should work jointly under the

Commandership of Shri Walter Devaram, the then ADGP, Law and Order, Tamilnadu State, the respondent No.3 was appointed as Dy.

Commander of the Joint Task Force consisting of Karnataka and Tamilnadu Task Forces. The

respondent No.3 was only a Dy. Commander and the Commander of the Joint Task Force was Shri Walter Devaram, the then ADGP, Law and order, Tamilnadu. This respondent was not an

omnipotent and omniscient Commander like Col. Gadaf of Libya or Saddam Hussain of Iraq. But was under the supervision and direction of the Commander of the Joint Task Force Shri Walter Devaram. Further, so far as his work in Karnataka was concerned, he was working under the

supervision, direction and control of the ADGP, Law and Order and DGP of the State. Two officers have worked as ADGP Law and Order during the tenure of this respondent as Commander, STF and have supervised, controlled and directed the work

66

performed by this respondent. This respondent has worked under the State Government which was headed during his tenure as Commander, by Shri Veerappa Moily and Shri H.D. Devegowda, as Chief Ministers. Further, as Dy. Commander of the Joint Task Force, he has worked under the direction, supervision, cooperation and coordination with the Commander of the Joint Task Force Shri Walter Devaram. Although, no indictment has been made by the NHRC or any charges made against respondent No.3 have not been proved in the Honble Justice Sadashiv Panel in its proceedings and findings, it is to be stated that, if the theory of Command Responsibility has to be accepted, Shri Walter Devaram, Commander, Jt. Task Force, Tamilnadu, 2 officers who supervised the work of respondent No.3 as ADGPs Law and Order, the 4 officers who worked as DGPs and 2 Chief Ministers under whose control the Police Department worked during the tenure of respondent No.3, will have to share the responsibility for any blame which may accrue to the performance of the Task Force. Further, the Joint Task Force has performed its duties in an area spread over 18000 Sq. Kms. forming part of Karnataka, Tamilnadu and Kerala States. A number of junior officers were functioning in different camps which were hundreds of

kilometers away from the Headquarters of the

67

respondent No.3 and the junior officers were operating at their discretion in their respective areas and these junior officers also have to share the command responsibility.

52.

This shows the mind set of the third respondent.

His supervisors and juniors should share their responsibilities and not him. He says he is not Col. Gadaf of Libya or Saddam Hussain of Iraq. Such persons have no place in this

democratic country. Its culture, heritage and people will not tolerate such people for a second. He must know where they stand today. Though he is not one among them, if what is stated in the affidavit of those women set out above is true, he is worse than them. Even after 15 years there is no remorse.

He is not prepared to accept the responsibility. Now, we understand why the report of Justice Sadashiva panel is deliberately kept back from this Court both by the State as well as the third respondent who are in physical possession of the said report. We appreciate the gallantry award given and we have due respect to those persons who laid their lives in fighting against the menace and our heart bleeds for them.

68

But under no circumstances, whatever may be the provocation, we cannot approve for a second, rape, disrobing of women, giving electric shock to them, torture. It cannot be accepted as a means of investigation by the police, in eliciting information during investigation, in finding out the whereabouts of the accused. There cannot be any compromise on this. It is

totally unacceptable. It represents the colonial mind set and it has no place in free India. Even after 60 years of

independence, if the police are adopting the said means against hapless, illiterate, poverty stricken, tribal, men and women who are residing in remote villages in the forests, the person to be blamed is not the police constable, who actually inflicts the said pain, but the persons who are heading the police force, who are actually responsible for the said heinous acts. This

only demonstrates that still in some police officers there is no change of mind set. They are not willing to give up their old habits. Habits die hard. They have not learnt any lessons.

They are not sensitive to human values, human rights and the culture and ethos of this land. These acts undermine the

dignity of the individual, which our Constitution secures to all the citizens of this Country, as declared in the preamble to the

69

Constitution itself. These police excesses would have gone unnoticed in spite of the written complaints by the victims to NHRC, may be on the ground of bar of limitation, for want of jurisdiction and on other technical grounds. It is only when a person of the stature of Justice D.M. Chandrashekar, who represented nobility, simplicity, human values and all that is good in life, raised his voice at his old age, complained to the NHRC, the authority took action. It was not an enquiry of any complaint under the Act. The complaint was that Policemen of State Task Force are indulging in human rights violation against a community of people in 48 villages. Therefore, the Commission thought it fit to appoint a Panel. The constitution of this Panel shows the importance the NHRC gave and the responsibility which was thrust on them. The said Panel has submitted its report. After the State filed its

remarks/objections to the report of the Panel, the objections were considered by NHRC presided by none other than Justice Shivaraj Patil, former Judge of the Supreme Court of India, Justice Bhaskar Rao, Former Chief Justice of this Court and two other eminent persons, brought some sense into the Government of the day, making it clear that it is not a legal

70

issue,

it

is a case of

violation of human rights and

constitutional rights. The Government of the day realized the importance representing and significance of the same. They were

all the people and also had concern for the

unfortunate victims. They accepted the suggestion of NHRC, agreed to pay compensation and paid compensation. Thus,

they discharged their constitutional obligation to the people of this Country. We are concerned about the factual finding recorded, which is not disputed. The efficacy of which cannot be diluted on the ground of limitation, jurisdiction, etc.

53.

It is in this context, it is of utmost importance to

appreciate what the Apex Court has stated in Prakash Singhs case. They prescribed three criteria to be taken note of by the UPSC before empanelling candidates. One of

the criterion is that the candidate must have a very good record. They have designedly and consciously used the word very good record. They did not say very good annual service record. The annual service record is also one of the inputs which forms part of record of a public servant. In addition to a very good service record as explained in Service Law, the

71

candidate must possess a very good record, meaning thereby his conduct as reflected in other records d hors the service record. Certainly, report of a Panel headed by a retired High Court Judge and a retired Director of Premier Investigation Agency of the country like CBI, their expressions and findings after investigation and enquiry in the form of a report, is also a record, which falls within the meaning of very good record prescribed by the Apex Court, which the Selection AuthorityUPSC has to take note of. Similarly, the order passed by the NHRC after considering the said report and objections to the same is also material and forms part of the record of the third respondent.

54.

The Apex Court in the case of CENTRE FOR PIL

AND ANOTHER vs UNION OF INDIA AND ANOTHER [AIR 2011 SC 1267] has emphasized the importance of placing before the selection authority/empanelling authorities all the records pertaining to the candidate to decide

the suitability of the candidate to be appointed to the post. Clause (vi) of para 55 reads as under:-

72

(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or

material should be withheld from the Selection Committee. It will not only be useful but would

also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee Underlining by us

55.

In the light of the law laid down by the Apex Court

as aforesaid, the Government, while forwarding the names of the persons under zone of consideration for empanelment ought to enclose complete information, material and data of the concerned officer, whether favourable or adverse. Nothing

relevant and material should be withheld from the UPSC. The said material will not only be useful but also would serve larger public interest.

73

56.

Therefore, it is clear that it is not only the annual

confidential report/performance appraisal report which is to be placed for consideration. It is one such record which

constitutes the records to be placed before the empanelling authority. In fact, the word used by the Supreme Court is

therefore very good record and therefore all record pertaining to the candidate including the annual performance record is to be placed. If any relevant and material record is not placed for consideration, it amounts to withholding or suppressing relevant material. If it is not placed it would amount to nonconsideration of relevant material which would affect the process of appraisal, selection which in turn would vitiate the empanelling itself and the consequent orders.

57.

If, for the service rendered during the relevant

period, the third respondent is entitled to Gallantry award and cash price of Rs.1.6 Crores, which is unheard of in police

history, as he himself declares, certainly all other portions of his record during that period also should be taken note of, as it forms part of the same record. It is that record i.e. his record during that period as reflected in his service record and his

74

record as reflected in the reports/orders of the Panel and NHRC, would be the record which the UPSC ought to have taken note of before empanelling the third respondent. It was a material fact which the authority ought to have taken note of and if they have not taken note of, because it was not produced before them, certainly the said decision is vitiated.

PERFORMANCE APPRAISAL REPORT (ACR) 58. the part of The argument is that there was no obligation on State Government to place before UPSC the In

records other than what is prescribed under the Rules.

support of the said contention, The All India Services (Performance Appraisal Report) Rules, 2007 was relied upon and in particular Schedule-I, which reads as under:-

Documents

to

be

maintained

in

the

performance Appraisal Dossier:-

(i)

A Curriculum Vitae to be updated annually on the basis of the performance appraisal reports and a five-yearly Curriculum Vitae update submitted by the officer reported upon.

75

(ii)

The performance appraisal reports earned throughout the career.

(iii)

Certificates of training academic courses attended after joining service, study leave.

(iv)

Details

of

books,

articles

and

other

publications. (v) Appreciation letters from Government or Secretary or Head of Department or special bodies or commissions. (vi) (vii) Reports of medical check-ups. Copy of order imposing any of the

penalties specified in the All India Services (Discipline and Appeal) Rules, 1969 and final result of inquiry into allegations and charges against a member of the Service. (viii) Warnings or displeasure or reprimands of the Government.

59.

Relying on the said Schedule, it was pointed out

that there is no scope for any such reports being submitted and therefore, there was no obligation cast on the Government to supply these reports. It was contended that, as in the said report, since there was no indictment of the third respondent, it was totally irrelevant.

76

60. from Sir

The learned Advocate General relied on a passage William Wade on the Administrative Law

regarding what is relevant and irrelevant considerations, which is extracted as under:-

There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant

consideration, or to have failed to take account of relevant considerations, so that its action is ultra vires and void. It is impossible to separate these cleanly from other cases of unreasonableness and abuse of power, since the court may use a variety of interchangeable explanations, as was pointed out by Lord Greene. Regarded collectively, these cases show the great importance of strictly correct motives and purposes. They show also how fallacious it is to suppose that powers

conferred in unrestricted language confer unrestricted power. Lord Esher MR stated the irrelevant considerations doctrine in a case where a vestry had mistakenly fixed the pension of a retiring officer on the erroneous assumption that they had no discretion as to the amount:

77

But

they

must

fairly

consider

the

application and not take into account any reason for their decision which is not a legal one. If people, who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the exercise of their discretion, then in the eye of the law they have not exercised their discretion. The doctrine applies equally to failure to take account of some consideration which is necessarily relevant, such as the respective costs of rival proposals or the availability of more suitable land. Cooke J explained in a New Zealand case that the more general and the more obviously important the

consideration, the readier the court must be to hold the Parliament must have meant it to be taken into account. Under many statutes the discretion conferred is extensive, and it is no concern of the court to restrict it artificially by limiting the

considerations that are relevant. A minister may be entitled to take account of every factor that may affect the public interest, but it does not follow that he is obliged to do so. In

78

another New Zealand case Cooke J pointed out the difference between obligatory

considerations (i.e., those which the Act expressly or impliedly requires the Minister to take into account) and permissible

considerations (i.e., those which can properly be taken into account but do not have to be). Where there is overlap between different areas of policy, for example housing and planning, the court may decline to make a rigid dichotomy between them so as to confine a housing authority to housing

considerations only. The court will intervene in two situations. The first is where the authority has acted on grounds which the statute never intended to allow, for example where fees charged for street traders licences were based upon what the market would bear rather than administration costs. The second is where the authority has failed to take proper account of something that the statute expressly of impliedly required it to consider, even though it may not have been known at the time. But under this second head the implied requirement may be wide. In deciding whether to deport an immigrant the Secretary of State on classic Wednesbury principles is bound to take account of all

79

relevant

considerations,

so

that

an

adjudicator misdirects himself in law if he refuses to take account of the immigrants special value to his own community. A threat by that community to instigate a strike, on the other hand, would be improper and therefore irrelevant.

61.

Then has also relied on the judgment of the Apex

Court in the case of Indian Railway Construction Co. Ltd., Vs. Ajay Kumar [(2003) 4 SCC 579] and referred to Paras 17 & 18 of the said judgment which are extracted as under:

17.

Before summarizing the substance

of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture House Ltd. V. Wednesbury Coprns. (KB at p.229: ALL ER pp.682 H-683 A). It reads as follows: It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense. It has frequently been

80

used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. In another, it is taking into consideration

extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another. It must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers

unreasonable. . The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.

81

18.

Therefore, to arrive at a decision on

reasonableness the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of may choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.

62.

He also relied on the judgment of the Apex Court in the

case of Union of India and others Vs. Land Tribunal. Gen. Rajendra Singh Kadyan and Another reported in (2000) 6 Supreme Court Cases 698 at Para.29, which is extracted as under:-

It

is

well-known law that

principle

of

administrative

when

relevant

considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same

82

cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government.

and contended that the aforesaid reports are totally irrelevant and if it had been placed and if the UPSC had taken into consideration the same and had not empanelled the third respondent, the order would have been vitiated for taking into consideration irrelevant material.

63.

Learned counsel for the third respondent, in

addition to the aforesaid decisions, submitted that the said reports were relating to the period about 15 years back and that is not the material which has to be looked into. In support of this contention, he has relied on the judgment of the Apex Court in M.V. Thimmaiah & Ors Vs. Union Public Service Commission & Ors. reported in 2008 AIR SCW 229 at Para.11 which is extracted as under:-

83

It is also contended that the marking given by the Selection Committee was

arbitrary. The grievance was that confidential report of Shri. S. Daya Shankar for the year 2000-2001 was not available and incase of Sr R. Pramapriya, the confidential report for the year 1997-98 was not available. Yet the report of Shri. S. Daya Shankar was assessed to be outstanding and Shri. R. Ramapriya was assessed to be very good without there being any basis for it. This was found by the Tribunal to be patently arbitrary. It is the selection process and what prevailed with the Committee after review of the annual

confidential reports of all these officers cannot be dilated in writing. When the Selection Committee sits and considers the candidates of both the officers and in case of both the officers, looking at the 5 years annual confidential reports, one is found to be overall outstanding and the other is found to be overall very good, this marking of the

Selection Committee cannot be interfered with in extraordinary jurisdiction or even by the Tribunal. We fail to understand how the Tribunal can sit as an appellate authority to call for the personal records and constitute

84

Selection

Committee

to

undertake

this

exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection

Committee is not subject to appeal either before the Tribunal or by the Courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of the ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunal and the High Courts started sitting as Selection Committee or act as an appellate authority over the selection. It is not their domain, it should be clearly held by this court in a number of decisions. Our attention was

invited to a decision of this Court in R.S.Dass (supra) 1986 (Supp) SCC 617] wherein at paragraph 28 it was held as follows:

It is true that where merit is that sole basis of promotion, the power of selection becomes wide and liable to be abused with less difficulty. But that does not justify presumption regarding arbitrary exercise of power. The machinery designed for

85

preparation

of

Selection

List

under

the

regulations for promotion to All India Service, ensures object and impartial selection. The Selection Committee is constituted by high ranking responsible officers presided over by Chairman or a Member of the Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the Selection committee are scrutinized by the State Government and it finds any discrimination in the Selection it has power to refer the matter to the

Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Government along with the records of officers, before approving the Select list. The Selection Committee and the Commission both Include persons having requisite knowledge,

experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrary. When power is vested in high authority there is a presumption that the same would be

exercised in a reasonable manner and if the

86

selection

is

made

on

extraneous

considerations, in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power.

64.

In the case of BADRINATH VS. GOVERNMENT OF

TAMIL NADU reported in (2000) 8 Supreme Court Cases 398 at Para 58 the Apex Court has held as under:-

58.

From the above judgments,

the following principles can be summarised:

(1)

Under

the

Article

16

of

the

constitution, right to be considered for promotion is a fundamental right. It is not the mere consideration for promotion that is important but the consideration must be fair according to established principles

governing service jurisprudence.

(2)

Courts

will made

not by

interfere

with

assessment

Departmental

Promotional Committee unless the aggrieved officer establishes that the non-promotion was

87

bad according to Wednesbury principles or it was mala fides. (3) Adverse remarks of an officer for the

entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory

retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.

(4)If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even incases of compulsory retirement.

(5)

If the adverse remarks relate to a

period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.

88

(6)

Uncommunicated adverse remarks

could be relied upon even it no opportunity was given to represent against them before an order of compulsory retirement is passed.

65.

Therefore, their case is that firstly, the reports were

not relevant material. Secondly, it was regarding the incident which took place 15 years back, which need not be taken into consideration. Thirdly, what is to be taken note of is only what is provided in the aforesaid Rules as set out in the Schedule and nothing more.

66.

In the aforesaid judgment, it is not stated that the

records prior to 10 years should not be placed before the authority for consideration. On the other hand, while

considering such records, how the authority should act in respect of remarks, which relate to the distant past is explained. In fact, the incident in question pertains to the However, the report of the Panel was The order of NHRC is dated

period 1993 to 1996.

submitted on 1.12.2003. 15.1.2007.

The date on which the meeting for empanelment

took place is on 30.11.2011. The dates speak for themselves.

89

The argument that the said record pertains to distant past, on the face of it is fallacious. Therefore, the said judgment

supports the case of the applicant that non- placing the said record vitiates the empanelment.

67.

This argument brings to the fore the importance to In this context, it is

be attached to the appraisal report.

relevant to see what the UPSC has stated about these records.

68.

The Minutes of the meeting of the empanelment

Committee is produced by the fourth respondent. The relevant paras reads as under:-

5.2 It was brought to the notice of the Committee that, as informed by the State Govt., no disciplinary/criminal proceedings were

pending or contemplated and there were no adverse remarks in the ACRs/APRs of the aforesaid officers.

5.3

It was also brought to the notice of the Committee that the State Govt. certified the integrity in respect of all the officers in the zone of consideration.

90

5.4

As intimated by the State Govt., no penalties were imposed on the eligible officers.

6.1

The Committee took into consideration the last 10 years ACRs of the officers upto the year 2010-11 while assessing the officers. The Committee went through the records of the eligible officers after and made on their the

assessment

deliberating

quality of the officer as indicated in the various columns recorded by the

Reporting/Reviewing

officer/Accepting

Authority in the ACRs for different years and then finally arrived at the

classification to be assigned in respect of those years. The Committee also took into account orders regarding appreciation for the meritorious work done by the

concerned officer. Only those officers who were assessed by the Committee as at least Very Good for each of the preceding 10 years were considered for inclusion in the panel. 6.2 The Committee observed that one of the criteria for selection indicated by the Honble Supreme Court was the range of experience for heading the Police force. It was also observed that no guidelines had

91

been laid down for determining the range of such experience. In view of this, the Committee deliberated on this aspect and took into account the experience of the officers in the core areas of policing like law and order maintenance, administration in the crime etc., fields of

investigation, alongwith

experience

vigilance/intelligence/training.

69.

From the above, it is clear that the Committee took

into consideration the last ten years ACRs of the Officers upto the year 2010-11 while assessing their merits. They looked

into the particulars mentioned in various columns recorded by the reporting and reviewing Officers, accepting authority in the ACRs for different years and then finally arrived at a classification prescribed in respect of those years. They took into consideration the awards regarding appreciation for the meritorious work done by the concerned Officers. Only those Officers who were assessed by the Committee as atleast very good for each of the preceding ten years were considered for inclusion in the panel. They took note of the judgment of the Supreme Court in Prakash Singhs case, which has prescribed

92

the range of experience for heading the police force as one of the criteria. As no guidelines were prescribed, they took into account the experience of the Officers in the core areas like law and order maintenance, criminal investigation, administration etc., along with experience in the field of vigilance, intelligence and other fields and empanelled their names.

70.

We have already pointed out and also extracted in

full what the third respondent has stated in his Bio-Data about what he did prior to ten years. He has stated that in the entire history of police of the Country, such a service is not rendered by any policemen and in recognition of his invaluable service, Presidential Gallantry award is given to him and he has been given Rs.1.6 Crores from the State Exchequer. He proudly

states that under his leadership 60 gang persons were killed in various encounters, whereas the Panel report says out of 60 killed, 36 cases are doubtful in nature, which are in the nature of false encounters. If this record is taken into consideration by the UPSC for declaring that he is suitable to be empanelled, we do not find any justification to exclude the other side of his service record as evidenced by the panel report and as affirmed

93

by the NHRC in its order, which falls within ten years from the date of consideration of his case.

71.

He has stated in the statement of objections that

he was working under two ADGPs, four Officers who worked as DGPs and two Chief Ministers. atrocities are committed, As contended by him, if the also should share the

they

responsibility.

Now the question is, will such persons, when

they write the ACRs of the third respondent, would write any adverse remarks in his service register as what is stated in his ACRs would equally apply to them also. Honble Chief Ministers, who have no role to play, have owned the responsibility. That is what is expected in a democracy. They have showed their concern and paid compensation.

Unfortunately, they did not have the political will and courage to direct actions against the persons who indulged in these acts. May be, they had soft corner and sympathy for them, for which they cannot be found fault with as, as the Head of the State, they had kept everyones interest in their mind. In one hand, they paid compensation to the victims and on the other hand, they paid liberally Rs.1.6 crores to the third respondent

94

and Rs.8 Crores to the persons who worked under him. It is in this background, his service records only shows that he is very good. It is on that basis, the UPSC has assessed his record. If that is the only material to be looked into and looked into by the UPSC, their observations that he is very good cannot be faulted with. Then how far these ACRs represents the true service record and what is the weight to be attached to the same. Can such a report alone be the basis to assess the

suitability of the person to be empanelled and does it serve public interest.

72.

In the aforementioned Badrinaths case, on

which reliance is placed, it is categorically stated that adverse remarks of an Officer for the entire period of service can be taken into consideration while promoting an Officer or while passing an order of compulsory retirement. But the weight

which must be attached to the adverse remarks depends upon certain sound principles of fairness. If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time,

95

particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement. If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.

73.

Therefore, it is not the law that

service records

anterior to ten years was not relevant. If the adverse remarks relating to, such as, being regular in his not putting maximum effort or not do not affect his integrity, if

work,

subsequently his record show that he has improved and his superiors have duly observed in the service record that his performance is good, then certainly his past record at the initial stage of his career or anterior to ten years cannot be held against him and deny whatever benefit to which he was entitled to. But no such concession is permissible if there is adverse remarks which affects his integrity, commitment and character. As pointed out in the said judgment, weightage to be attached

96

depends upon certain sound principles.

All these is on the

assumption that if a public servant knowingly or unknowingly has committed an act and when it is pointed out to him, he has realised it and has transformed. So, an opportunity is given for correcting himself and transforming. Once he is a

reformed man, he cannot be denied the benefit based on his past history. Therefore, all these factors, the UPSC ought to have considered before empanelling the third respondent if the report of the Panel and the order of NHRC had been placed before it. The UPSC has been denied the benefit of such

consideration by withholding the said material, as such the empanelment of the third respondent is vitiated.

74.

It is contended that once the UPSC has selected

and empanelled the names, irrespective of the seniority or merit, whatever that might had prevailed on the UPSC, the Chief Minister of the State has the prerogative to pick up the person of his choice among the empanelled candidates ignoring the seniority and merit. In support of the said contention,

reliance was placed on the judgment of the Apex Court in the State of W.B. and others Vs. Manas Kumar Chakraborty

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and Others reported in (2003) 2 Supreme Court Cases 604 where at Para 17, it has been held as under:-

There is no dispute that the post of DG&IGP is a selection post like the other DGPs. The post of DG&IGP being a post of very sensitive nature can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence. We are, therefore unable to accept the

contention of the respondent that deployment of an incumbent in such a post can go only by seniority. Merit in the nature of past record, the credibility and confidence which one is able to command with the Government of the State must play a predominant role in

selection of an incumbent to such a post.

75.

This power is conferred on the Chief Minister. So,

apart from the service records, where his seniority and other achievements are recorded, he should be a person with whom they have confidence for the purpose of giving effect to what they believe as good and good for the public of this State. Therefore, that discretion is a must and it is conferred on them and it is recognised by the Courts and there cannot be any

98

interference with such discretion. It is also settled law that such discretionary power should be exercised with great caution and circumspection keeping in mind the object with which such a power is conferred. It cannot be arbitrary and irrational. In this background, we look at the way in which

that power has been exercised for the appointment of the third respondent.

76.

The material on record disclose that

meeting of The

the UPSC was convened on 30.11.2011 at 11.00 A.M.

Chief Secretary of the Karnataka State and outgoing DG and IGP and two members along with the Chairman of UPSC were present. All of them met as stated above and they looked into the ten years ACRs from 11 AM to 2.00 P.M. They had made their assessment and empanelled three names. On the very

same day, the incumbent had to lay down office as he was attaining the age of superannuation. He was not present in

Bangalore. The Chief Secretary was also not present in Bangalore as they were all in Delhi. The empanelled names

were sent to the State by Fax. After receipt of the Fax Message, the record discloses, it was kept in sealed cover. The sealed

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cover was opened and some official took it before the Chief Minister, who has signed it. If that is the way the absolute

power conferred on the Chief Minister is exercised keeping in mind the public interest, it is well settled that Court should not interfere with such orders and will not interfere with the same and leave to their discretion to answer their conscious whether such an absolute power is exercised by them in the manner they were expected to. But one thing is clear that the Chief Minister before exercising his power has not looked into the records and in particular the Panel report and the order passed by the NHRC.

77.

Before the Tribunal, a specific ground is urged that

the Chief Minister was kept in darkness. Now, this report has come to light, which was in his possession. The stand of the third respondent is clear from the statement of objections he has filed, he is trying to drag the former Chief Minister under whom he was working and he wants every one to be responsible except himself. The Tribunal by the considered

judgment held that the said report is a material fact, which ought to have been placed before the UPSC and not placing

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that material fact has vitiated the empanelment and the consequent order of the Chief Minister appointing such a person and therefore, it has set aside the order of appointment.

78.

Assuming at the time of making appointment,

which is done in haste, the Chief Minister did not have the panel report before him, at the relevant period when the

matter reached the Tribunal, facts unfolded before the Tribunal. Atleast, after the order of the Tribunal and the

aforesaid facts coming to light, in particular the stand of the third respondent as aforesaid, he should have dis-associated himself with the said appointment. Instead, they chose to

challenge the said order by preferring these writ petitions and in the writ petitions they want to give a go bye to the stand taken by the Government fifteen years back and are taking a stand, which is just opposite to what the Government did, giving an impression that they are solidly behind the third respondent.

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79.

As stated earlier, we do not expect his Superiors to

write in the ACRs against the third respondent any adverse remarks. Now , these reports are before the Chief Minister,

the stand taken by the third respondent in the statement of objections shows that there is no transformation or remorse to what has happened in the past. If they have concern for the downtrodden, socially backward people, tribals, helpless

women, the State should not have preferred these writ petitions. We are not seeing any such concern. On the

contrary, the writ petition is filed justifying the action. It is not a legal issue as far as he is concerned. It is a moral issue.

Even now it is not too late and we are sure he would keep public interest in mind and would have before his eyes those faces of helpless tribal women who are raped, tortured and humiliated and ensure the public that in his dispensation such things would not repeat by taking an appropriate decision.

OTHER CONTENTIONS 80. It is in the light of the aforesaid discussions, we do

not find any merit in the contention of the third respondent that in the original application filed before the Tribunal, the

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applicant has not at all challenged the empanellment and therefore, he did not have an opportunity to meet his case. It is devoid of any merit, because, in the lengthy statement of objections filed, major part of the objection relates to this report. He is in no way prejudiced and whatever we have

extracted above shows how effectively he has met those allegations.

81.

Secondly, what is challenged in the application is only that the Chief Minister has unbridled

his appointment and

power to ignore the seniority and appoint a person of his choice and it is not amenable to judicial review. If such an

appointment had been made on the basis of empanellment made in accordance with law, we would not have interfered with appointment. We have held that the empanelling

authority did not have all the material facts before assessing the claim of the third respondent. Therefore, if the

empanelment is void and illegal, the consequential order of appointment also has no legs to stand. The order appointing the third respondent is set aside on that ground by the Tribunal, in which, we do not find any infirmity.

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82.

Thirdly, it was contended that his tenure was from

8.2.1993 to 28.2.1996. These complaints pertain to the period anterior to that and as such it is barred by time by virtue of Section 36 of the Protection of Human Rights Act, 1993. As already set out, the Committee report does not pertain only to twenty complaints. It has taken into consideration all the

Human Rights violations which were complained of and which were brought to their notice at the time they commenced an enquiry. We have extracted above the statements of two

victims who have directly accused the third respondent as being present when they were tortured. As rightly pointed out by the NHRC in its report and as accepted by the State Government, it is not a legal issue, but it is an issue pertaining to human rights. It is not the case where any action is taken against any individual for violating human rights. The Task

Force of the State committed atrocities on villagers of 48 villages and seen from that background, there is no merit in the said contention.

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83.

It is contended that the report submitted by the

Human Rights Commission is only an interim report. Unless final report is filed and directions are issued, the said report cannot be part of material and therefore, that report did not constitute a material fact to be placed before the UPSC. For the reasons, we have already discussed in detail, the said submission has no value because, though it was in the nature of an interim report, it is based on the finding that atrocities have been committed, victims have been compensated and

what is paid as compensation is an interim relief. Insofar as the finding of fact that atrocities were committed is concerned, as it is accepted by the Government and not challenged till today either by the Government or the third respondent in any forum known to law, it has attained finality and on the basis of final report, follow up action should have been taken. They are right to the extent that even NHRC has failed to take further action in the matter. But that will not enure to the benefit of the third respondent. We do not see any substance in the said contention because the parawise remarks to the report by the Panel was prepared by the then DG & IGP, a copy of which the third respondent has filed in his writ petition, which clearly

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shows the responsibilities expected of by the Department and they have promised follow up action. The person occupying the said post, after fifteen years, has no right to turn round and say that either the report is wrong or that it is barred by time. Even after 15 years, there is no transformation and remorse.

84.

Lastly it was contended that the Tribunal had no

jurisdiction to direct the Government to appoint the applicant as the in-charge DG & IGP. In fact several judgments were

cited to show that in the past when the appointment of an incumbent was set aside he is permitted to continue in position till the selection process is re-done. Reliance is also placed on the judgment of the Apex Court in the case of Satheedevi .vs. Prasanna and another reported in (2010)5 SCC 622 wherein at paragraph 13, it has been held as follows:-

The

other

important

rule

of

interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words, which are not there in it. Even if there is a defect or an

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omission in the statute, the Court cannot correct the defect or supply the omission

85.

The Tribunal has not re-written or added or

supplied the omission. All that the Tribunal has said is once the appointment of the third respondent is set aside and until the UPSC again reconsiders his claim in the light of the reports, during interregnum period, it has directed the State to appoint the applicant. It is true, normally, the Courts have no jurisdiction to direct the State to appoint a particular person to the said post. It is the prerogative of the State. In fact, the Supreme Court in the case of Citizens for Justice and Peace .vs. State of Gujarat and Others reported in AIR 2009 SC 1420 has held as follows:-

An

appointment

of

government

servant is the prerogative of the particular government, particularly, when it is a

sensitive appointment of Director General of Police. We, under the doctrine of judicial

review, would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today.

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86.

Therefore, the Courts have no power to issue

directions to appoint a person in particular to such a sensational post. The Tribunal has not issued any direction for such appointment. It has set aside the appointment of third respondent on the aforesaid grounds set out in detail by us. Therefore, it was of the view that till UPSC reconsiders his case once again, he should not be continued in the same post. Among the three persons whose names were empanelled, one person is working as DG & IGP of Mizoram and he is opted out of contest. That leaves two candidates, namely, the third As far as the applicant is

respondent who is appointed.

concerned, he is the senior most, he has unblemished record. That probably is what has weighed in the mind of the Tribunal. Both the applicant and the third respondent are retiring from service on 31.5.2012. A junior like the third respondent has enjoyed his Office from December 2011 till the date of the order. It may take some time for the UPSC to re-do the whole thing and in the interregnum they want the applicant to occupy the said post. In the facts of this case, we cannot find any

infirmity in the said direction issued, which is just and

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equitable. contention.

Therefore, we do not see any merit in the said

87.

It is further contended that even against the

applicant, there are reports which are not favourable to him and it also goes to show that he is not clean as is sought to be made out, which was not placed before the UPSC. When the applicant filed the petition, specifically complaining of Human Rights violation and also produced the orders passed by the NHRC, though the respondent had filed a lengthy written statement traversing all allegations, in fact, citing the

judgments of the Madras High Court and other Courts, he did not chose to utter a word regarding any such report against the applicant. For the first time before this Court, in the writ

petition filed, he has made an attempt to produce some reports. These reports cannot become the subject-matter of these proceedings as they were not the subject-matter before the Tribunal. If there are any such reports, it is always open to him to bring it to the notice of the appropriate authority. But that by itself would not disentitle the applicant to occupy the said post in terms of the directions issued by the Tribunal.

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88.

Accordingly,

we

answer

the

points

for

consideration as under: -

(a) The report of the Justice Sadashiva Panel and NHRC report/order, where there is a reference to the role played by the third respondent in

investigation, constitutes relevant and material information and data, which ought to have been placed before the UPSC by the State

(b) As the said reports/orders are withheld from the UPSC, the empanelment of the third respondent by UPSC is vitiated and consequently the order appointing the third respondent as DG and IGP of Karnataka is also vitiated.

89.

For the foregoing reasons, we do not see any merit

in both the writ petitions.

Accordingly, both the writ petitions are dismissed. Parties to bear their own costs.

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Sri P. S. Dinesh Kumar, is permitted to file his memo of appearance within four weeks.

(N. KUMAR) JUDGE

(H.S. KEMPANNA) JUDGE

alb/sa/rs/ckl/ksp/ujk