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NKJ & HSKJ

30.03.2012

O R D E R

I N

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

C/W.

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

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 30TH DAY OF MARCH, 2012

PRESENT

THE HON’BLE MR. JUSTICE N.KUMAR

AND

THE HON’BLE 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

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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.

3. Mr. Shankar Mahadev Bidari, IPS

DG & IGP (Head of Police Force), Karnataka, Bangalore.

4. UPSC

Represented by its Secretary New Building, Dholpur House Shah Jahan Road New Delhi – 110 069. …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.

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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.

2. Secretary

Department of Personnel and Training Ministry of Personnel Public Grievances and Pensions Union of India, North Block New Delhi – 110 001.

3. Union Public Service Commission

By its Secretary New Building, Dholpur House Shahjahan Road New Delhi – 110 069.

4. Sri. A.R. Infant I.P.S.

S/o. Mr.A.R. Kunjum

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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:-

O R D E R

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

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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.

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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. The UPSC in compliance with the directions of the

Supreme Court in Prakash Singh’s 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

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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 Singh’s case. It is

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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,

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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

Hon’ble Supreme Court in Prakash Singh’s case has given the

discretion of selection to the State Government. Therefore, the

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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 Hon’ble Justice

Sadashiva. The Hon’ble 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. If at all, any

allegations made, were proved and had indicted the third

respondent and finally if the National Human Rights

Commission had accepted the report of the Panel, headed by

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Hon’ble 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 Hon’ble 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,

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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

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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 Hon’ble 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 Hon’ble Supreme

Court on 06.12.2010, wherein while taking into cognizance the

State Government’s undertaking that they will consult the

Commission from time to time in the matter of appointment of

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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 Hon’ble 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 Hon’ble Supreme Court of

India dated 06.12.2010, in Prakash Singh’s 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

Hon’ble 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

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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 Singh’s

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,

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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

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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, except in

cases wherein his personal presence was detected. But, at

least in cases wherein his personal presence is acknowledged,

his responsibility is acknowledged as still continuing. The

relative failure of 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

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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

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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 regarding the third respondent and

therefore, his empanelment was void and 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 Singh’s 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

enquiries regarding claims which are barred by time. Even

after such enquiry, there is no indictment of the third

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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. In fact, the tribunal after setting aside the

order of appointment virtually has issued a direction

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.

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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

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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

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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

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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

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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.

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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

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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 Singh’s 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 Singh’s 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 Singh’s 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 points that arise for our consideration are as

under :-

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 Singh’s

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 Singh’s 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

is the Indian Police Act, 1861. After independence despite

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. This is the procedure which is now prescribed by

the 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 Hon’ble 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 Hon’ble 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

Bangalore and determined the modalities of enquiry. It held

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 Commission on 7.12.2006. The NHRC impressed upon

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 that their governments have

earmarked a sum of Rs.5 crores each for

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, Government of Karnataka

conveyed to the Commission that both the

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. Her statement is set out in the said letter as

under : -

“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. Nagi’s 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. The comments of the IGP as well as the State is as

under: -

“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 ½ 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

unprecedented in the annals of the Indian Police, he is

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

murder, false encounter, rape and torture. The record

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

Shivaraj Patil and consisting of Justice Bhaskar Rao, the

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 one individual

police man. 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

sensitivity demonstrated by the Government of that day, a

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 ½ 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 Women’s 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

Hon’ble 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 and significance of the same. They were

representing 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

Singh’s 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 Authority-

UPSC 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 non-

consideration 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 argument is that there was no obligation on

the part of State Government to place before UPSC the

records other than what is prescribed under the Rules. In

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) Reports of medical check-ups.

(vii) 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. The learned Advocate General relied on a passage

from Sir 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 immigrant’s

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 a well-known principle of

administrative law that 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 not interfere with

assessment made by 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

period 1993 to 1996. However, the report of the Panel was

submitted on 1.12.2003. The order of NHRC is dated

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

be attached to the appraisal report. In this context, it is

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.

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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 and made their

assessment after deliberating on the

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

Hon’ble 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, crime

investigation, administration etc.,

alongwith experience in the fields of

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 Singh’s 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. As contended by him, if the

atrocities are committed, they also should share the

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. Hon’ble 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 everyone’s 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 ACR’s 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 Badrinath’s 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, his not putting maximum effort or not

being regular in work, do not affect his integrity, if

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

97

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

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

99

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

100

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.

101

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

102

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

his appointment and that the Chief Minister has unbridled

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.

103

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.

104

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

105

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

106

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 a 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”.

107

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

respondent who is appointed. As far as the applicant is

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

108

equitable. Therefore, we do not see any merit in the said

contention.

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.

109

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.

110

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