Karnataka High Court
The State Of Karnataka vs Sri A R Infant I.P.S-Karnataka on 30 March, 2012
Bench: N.Kumar, H.S.Kempanna
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 DOPF Union of India North Block New Delhi -- 110 001. 3. Mr. Shankar_Mahad,ev'Bidaril; 'V DG & IGP ' r ' -- (Head of .PolicefifVl§'_orce),_ Karnataka, : Re;5'réé;ent.é;1_ bv: Beclretaijtlv A All New Building, *Dholpu_r 'H__ouse Shah Jahan C' New Delhi -- 1"] 0.069.' ...Respondents
(By Sr.i.Navkcs_hl Batra, Adv, for Nandi Law Chambers, H ---------- for C/R.1 V _ Sri. M.V. Rao, Adv., for R2 ,VSriV.P.S.Rajagopal, Sr. Counsel, and p .SriIM.N.Prasanna, Adv., for R3 Dinesh Kumar, Adv., for R4) petition is filed under Articles 226 and 227 of T)'f.__Constitutioh of India praying to quash the impugned order _ ' 16.3.2012 passed by the Central Administrative '-- Tribunal, Bangalore Bench, Bangalore in Original Application
-..lf.No;:545/ 1 1 vide Annexure -- A and etc. S l./ IN WRIT PETITION No.9655/2012:
BE_'I__W_E_E_1'L Dr. Shankar Mahadev Bidari, IPS: _ S/ o. Mahadeva Bidri V Aged about 59 years Presently working as Director General and ¢_ , Inspector General of Police"(--HOPF.) V ' Karnataka State Police P V ' Head Quarters, Nmpathung'a*Po'ad'* Bangalore -- 560 I . .. Petitioner j_ --. and (syag;op"a1., vCo.unsel.
Siji.M.N';.Prasanna, _Adv.,)
1. State of 'Karriatakaie _ Represented by*i:_ts_ 1 Chief Secretary 4' A V ..
Governnienvt of Kariiataka idha na Soudha
- .Bar,ga1o.re -- 56060 V1 .
in ' V. 3 Secretary*--._ " T De{5art1nent"of Personnel and Training _ "'".Min'istry of Personnel ' V Public'C¥i1fie'Vances and Pensions "Uni:_)n oflndia, North Block New 'Delhi -- 110 001.
A' ' «Union Public Service Commission v By its Secretary New Building, Dholpur House Shahjahan Road New Delhi -- l 10 069.
4. Sri. A.R. Infant I.P.S. S/o. Mr.A.R. Kunjum Presently working as Director General of Police _--
Commandant General Home Guard's','~ i Director of Civil Defence & i G A f Director General Fire & Emergency Services, Bangalore ' "
O/o. DGP, No.1, Annaswamy Mudaliar Road _ g C' ' Bangalore -- 560 042.. _ 3,'..Res'por1Adents (By Sri. S. Vijay Shankar, oAdv_(_)c;at;e General along with Smt. Revathi Adinath l\Tard.e, tic.-GP 'for R. 1 & 2; Sri. P.,S'. Dinesh"Kuinar;_Adv.;. foyr7'R.3 ; " Sr; Navliiesh. Batra, A Adv, for Chamberfsv for R4) iins wTfi5'pefitKxr*is*'fikxi jinder Putkfle 226 of Constitutionwllof in lindia? praying to "quash the impugned order dated 16.3.2012-Xp.assed~_ by -- the Central Administrative Tribunal, Barigalore 'B'ench.,'C'tBangalore in Original Application No.545/ 1 1 vide .Anr'iexur'e _-- "A_by issue of a writ in the nature of certiorari andgrantsu_ch~,oth--er reliefs and etc. ._'These petitions--.....co'ming on for Admission this day, _made the folloWing:--
. ,_g ORDER "-These' two writ petitions are preferred challenging the ' "'.__orr:ler pafsseid by the Central Administrative Tribunal, Bangalore declaring the empanelment and selection of third A .;re_s_pondent as void, invalid, arbitrary and illegal as a result of ~ .:.V'non--application of mind and due to deliberate suppression of material facts and consequently quashing both the Xv empanelment of the third respondent asapcand.idate:e1igibleforll consideration and Annexure«A1-notific.aticg'na appointing no & IGP. V
2. The petition 'preferred by the State Government and by the third respondent challenging the purpose of convenience, are arrayed in the original papp'l.i;ca'ti«?:>;r_1.V FACTUAL V "
3. " 'apgplivcant is an IPS officer joined the Indian in the 1977. He has a careers planning 34 working as DGP Commandant General Home-Guards;§'.Director of Civil Defence and Director of General . Fire and" Emergency Services, Bangalore.
Sn'.N.Achuta Rao, who was appointed as Director 1 ».Ge_neral and Inspector General of Police on 05.07.2011, retired " lion 30.11.2011, on reaching the age of Superannuation. The applicant is the senior most Police Officer. 1/
5. The State Government vide letterli .
02.11.2011, forwarded a proposal to the if Commission (for short hereinafter r:eferredj"UlP'SCp) .l convene a meeting of the Empanelment Cornmditteell'. for' recommending a panel to enable select 'flew incumbent in place of the present DG' and :th:e=S&tate,lwho" was due for retirement on 30.1 1.20l __of"--thel"ji1dgment of the Apex Court in the r;:ase_of Sgiridghfi/s.":Union of India and Others' reported ll'... State Government sent five namesin. thel.ord'1c%;r of 's_en.i_orit'y--.» . V
6. compliance with the directions of the '_.V.Supre.r1§ielV 'Court.' " Pr-akash Singh's case convened a Agggrnpanelmentépiflommittee Meeting to prepare a panel for IGP of Karnataka Cadre which was held V on 3C)';----1 AThe Empanelment Committee considered the of 5 eligible officers forwarded by the State The Committee took into account the experience the officers in the core areas of policing such as law and A * order, maintenance, crime investigation, administration etc., along with experience in the fields of l\/' vigilance/intelligence/ training etc. On the basis of assessment, the Committee prepared a panel c_onsi_st.ingl.:of_thel"
names of three officers as suitable for]»appointrnen't_to_ of DC} and IGP of Karnataka-. Thereafter, they c_o:"::._£n'V'u£ucé;.té<1 1. the said names to the Governmentf»
7. The Chief Ministerwaftelr the aforesaid names, appointed. and IGP of police (Head of Police vfianpgalore in the Apex Scale of until further orders vice retiring from service on 30.11201 1. -ord.ebr'«.r§f appointment and Empanelment
---made the "Wh_i_chv was challenged by the applicant by l"fili'nlgV'an a-p_p'licati"on before the Central Administrative Tribunal, Ban ga-lor"e»., ' 2. 2 " A if 1n the application filed, the applicant has set out in facts which would disentitle the third respondent being ernpanelled and considered for the aforesaid post. fit was also contended that the said appointment is contrary to the judgment of the Apex Court in Prakash Singh's case. It is 8 graphically set out in the petition the haste UPSC finalized the names for empaneiiimfentlajndalsoaithe with which the Chief Minister appointedphthe to the said post. The main ground:liirgedV.is" the National Human Rights Commission" regardifié human rights violations of villagers Force (STF), Karnataka commanded respondent, which included (i) igilegvaly of male and female villagers, torture of male and female villagers, 3,tLri--pp'i*ng,'ldebasing and rape of women and (iv) the re_preVsent_ati.ori Vimochana to His Excellency the ___Govern_olrl of Kamatakai. highlighting the various crimes byjthe Karnataka STF under the commandership of He also refers to several other incidents. iv _There"~was,__"noVlmeaningful appraisal by the UPSC of the service l""'--._re'Cords "amid other materials. The State Government has 'patronlized the third respondent. They did not take note of the rights violation by STA force, which is commanded by _ ubthe 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, 9 Grievances Human Rights, Police Housing weret also produced to substantiate those allegatioris."'«_g '7
9. On service of notice S the State contested the mattergbygffilirigl; dietailedllstatement of objection. They contend by the UPSC contains thename "Sri.Lal Rokhuma Pachau and the 'S_irice__UPSC had empanelled the name suitable for appointment to the post of and Inspector General of Police, Karnataka,"the State Government had the power to select any one ofthe threVeV..o'fficersI': In the opinion of the State V'Gove1"n.mea_nt, since the""third respondent is a fit person to hold Vt'hev'posts.of. General and Inspector General of Police, it selected respondent. When the selection is made by the Conipetent Authority, the same cannot be interfered with. I selection of a particular officer/candidate out of an '' semparielment cannot be challenged except on the ground of h""v..ma_lEafides or serious violation of the statutory rules. The " .:~lHon'ble Supreme Court in Prakash Singh's case has given the discretion of selection to the State Government. Therefore, the Li/ l0 selection of the State cannot be faulted. No firm . laid in the pleadings to establish the ground"ofi:malafi<des,:it Hence, the ground of malafides is liable A' have traversed all other allegation's,rnade"inthe peti'ticn: . 3
10. Third respondent..filedan delpendentvvstatement of objection referring to the raised by the applicant. It was"'contyended thve::th'1rd_respondent has not been indicted .l':iicon§d'ucted by the Panel, constituted the Hon'ble Justice Sadashiva';.Tl'1i.e Sadashiva Commission was appointed tot'-look i11_to'._certain allegations made by certain ..,indivi_du.alvsd° regard'i'ng___violation of the human rights by the l':Karn'a,taka 'aynd_lTa__milnadu Joint Task Force. The Commission has 'gijyén'v':i£s,,'_rc};:o-it in 2003 to the NHRC after detailed and V _prolor'iged..__'enquiry. Specific allegations were made against the P"Wthirdggrespondent and the Panel has also given its report that _th-else. allegations have not been proved. If at all, any .:callegations 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 l\/ ll Hon'ble Justice Sadashiva, the NHRC would notlihavelpi T' quiet and would have forwarded a copy of theHrepao:i?tVl'to'_"the-_V State Government or the Central Gov'e&rn1?ne~1'it recommendations to take appropriate actions agaLinASt.'th,eVVthird --. C' respondent. Nine years have as the NHRC has not informed S;ta:te"€}overnment or Central Government, that the third]responpdelntlVi»s.iyp\.i,liidicted in the enquiry Hon'b1e Justice Sadashiva, it:. the llaélleglations made by the applicantralre has also traversed all other allegations further stated that regarding the doctrine of <;'om,mah;d relsponsibility, in the meeting held ihke Chief ll\'/1ini's'ter of Karnataka and Tamilnadu on St.George, Chennai, it was decided that the Karnataka land:FTamilnadu Task Forces should work jointly junderulthev,VC.ornmandership of Sri.Walter Devaram, the then and Order, Tamilnadu State. The third respondent appointed as Deputy Commander of Joint Task Force giuconsisting 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, it/i l2 the then ADGP, Law and Order, Tamilnadu. He was if under the supervision and direction of 'the.Comm.ander of .the'-.p Joint Task Force Sri. Walter Devaram.".lns.ofar as Karnataka is concerned, he working '-._ul"nVd'e'r~ "the "
supervision, direction and ;control..ofll.tlie "Law Order and DGP of the State. as ADGP, Law and Order, as Commander" supervised, controlled and the respondent.
If the i:sVVVV_acclepted, then the four officers, w_ho._ and two Chief Ministers under whose controlfthe Polic'e:Dep*artrnent worked during the tenure _ of thet§_hi'rd.respond_ent will have to share the responsibility for the performance of the Task Force. A number of J1inior.~officers were functioning in different camps, if _which~.. were hundreds of kilometers away from the Head "of. the third respondent. The Junior Officers were _operating at their discretion in their respective areas and these Iurlior officers also have to share the command responsibility. "HAS 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 Lt./' l3 set out various assignments, which he has under1,akengVin-this: S' career of 33 years as IPS Officer and" if recognition which has been confirmed'1«dur_ing Therefore, he contends that as he._is~.more 'meri.t_oriou's_'thafithe > ' applicant, he was selected to the___said_ post andl_therefore, he sought for dismissal of the 'petition: . ll. vfiledvvivdda detailed reply setting out the before calling the meeting dated Sdernpafielment of the suitable persons fig and IPS of the State of Karnataka. 'l'h.e SUPSSC, after efiiamination of the proposal sent by ,_the observedathat the Hon'ble Supreme Court vide their in the case of Prakash Singh have di'1'ec'te_dA Officer has been selected for the post of V S' DGP,"'«he sh'o1,1ld have a minimum tenure of at least two years S"".__irrespectiveS:' of his date of superannuation. The tenure of DGP galso,c:a,5me up for consideration before the Horrble Supreme on 06.12.2010, wherein while taking into cognizance the :.V'State Governments undertaking that they will consult the Commission from time to time in the matter of appointment of XM/' 14 DGP, adjourned the case on the said aspect for four ~ enable the learned counsel for the State to takell'i'11structions__,v Thereafter, the Commission vide le=tter,..d.a.ted 11.8';.l'l;2Q_llg}i.' requested the State Governmentgto clarifyyl':vhether»they have V. taken any leave from the Hon'hlel:l'lSuprefne_ for not extending the tenure of present lC+'Pgfor tvvo years. The State Government vide their 1, clarified that in pursuance oflthe 1}'1jje'«.fifr:,V.1'¢1'l:V)le;-:..'7'§upreme Court of India dated case, an affidavit was filed 1 in the said affidavit it was submitted by the direction of the Hon'ble Supreme passed in the case, on the basis __of they._§submissio'n-syto be made by the Central Government A'-,regarding_amendment of the relevant rules and regulation dealiliiggrv£fith~.,t1'ieV'-cadre management rules in the matter of _tenure"----of IGP of the State. They also intimated that Government of India was yet to issue any amendment to th--el'r.ele'vant rules and also informed that the Supreme Court 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 l>t/ 15 contend that they took into account' officer in the core areas of policing, Maintenance, Crime investigation?'Admginistratiozi-= "along with the exper15nf::<Q"€'xg_ ._ fufield of Vigilance / Intelligence / Trainings of the above assessment, the§~vCorn'znittee consisting of three names the post of DC} and IGP of Karnatakafanfdiforwiirdedlthe to the State of Karnataka in terms of T/apex Court in Prakash Singh's Case and no fa~ult*r:o'uldA"oe'found with the process of selection, ~"'which':'fheyjhave un'de._rt._ai{en and therefore, they contend that 7th'e1ie"is. no 4"1~;e'nT.t'"in_ this writ petition. Firajoimss oi: TRIBUNAL .12. 'The Tribunal after considering the aforesaid Tl"V.u"pleadi_ngsVV'and material on record, formulated four points for :_-co"nsid'eration. Thereafter, referring to a plethora of judgments "relied upon by the parties, the Tribunal held the Government of C 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, K 16 particularly the third respondent~ACRs. May be as the was fighting a war against accountability, which they ' felt that they could not win, they did not~ir1clud_e adzrlerseg entries in the files of these officers, anldipthey"wouldllllavefo_unldf:
it expedient not to place these nia'te.rialslbefo1<e_ the "con<:er'r1ed v T' authorities. The Chief Secretary" -:91' VV.y_the..lC3«ol\(.erni§nent of Karnataka had a solemn be apprised of the factors and certificate of the concerned incident in the professionalcareerliloif must have been reported Commission, UPSC seems to have assessed the. the candidates only on the basis of what' "was placed lbeforel it. The NHRC stipulations and not apparently placed before the UPSC as the UPSC do not contain any mention or explanation' adverse findings. Going with the reply of ' "--__lti'ie that they examined was only the length of service km the candidates and their related professional experience and by the general explanation they categorised persons on fthe basis of merit, with the applicant coming first in the list of merit. The UPSC has made the empanelment without noticing li/ 17 the glaring inadequacies on the part of the third It... » is to be reflected with some regret that the first"
deliberately suppressed the material facts::'froi3n though the full picture was available circulation within itself for years aThe_re'fore:,ig it must be held that Chief Secretai"y;'fi«--he Secretary and the DPAR Secretary who were Aconcernedilwitlijthle Vtyiroughout, had failed in their empanelment authority, thé_y..p;--ctfi;e' regarding the third respondfillt ____ _ l .l*:». .. fl '
13. Dealing' question of commandant _VVresponsLilbi1ity, it heldtheithird respondent claimed as he was "Commander under Shri. Walter, an officer of Tainilnaidu responsibility is diminished, except in if _cases""whe_rein:"his personal presence was detected. But, at 5'f..le'astgin cases wherein his personal presence is acknowledged, ihisglresponsibility is acknowledged as still continuing. The li':"V.relaEtive failure of the NHRC notwithstanding the State " .:~lGovernments of Karnataka and Tamilnadu had a sacred duty cast on them to find out whether police excesses resulted in 19 taken the ernpanelment at face value and had .c'ho'senth:e 'last it among the ernpanelled as the more:',suited..l subjective satisfaction is correct ace_ording.to' himg"
14. It proceeded to,.ho1d the---er'npane1rnentvi.s vifiated on the ground of non--disclosurel.of material and data whether 4favoura'ol'e"or;ernpanelment of the third having the benefit of full Llthird respondent and therefore; his ' -'was void and invalid. Consequentlypthe ._order appointing him as the DG _ V and is also Voi.d_7VlAcco.rdingly it was quashed. Aggrieved by both the State as well as the third respondent have'-preferred these two writ petitions. CQNTENTIONS it Sri. S. Vijay Shankar, the learned Advocate iGfeiieral of Karnataka, assailing the impugned order contended the State Govt. has strictly followed the procedure lfprescribed 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 . documents as required under law. Thereafter,"'the:'_Ul5'SC'on. consideration of the aforesaid materials;'e..empanelled names among the five names se;-itto them and corrlniiiniczlted the same to the State Govt. The discretion keeping in mind the suitability of "p.er.son_nto theusaid post has chosen the third ivpappointed HIM.
Therefore, leinpariellrnent:is:'xv1'tiated on any ground nor IS the the Minister contrary to law. unotvlviolated the procedure prescribeddunder in its jurisdiction of judicial review g.ca.nnot'u"'si..tV irrjudgrnent over the decision of both the "Ui.>sC§{s Well "as theciiief Minister. . r' lo. as the NHRC report is concerned, no doubt it not ~p_laced before the UPSC as it was not a relevant 3u"'4.__rnaterial'. very constitution of the Panel by the NHRC to into the alleged atrocities committed by the task force vi/ithoutjurisdiction. Further, the Panel in turn made lenquiries regarding claims which are barred by time. Even after such enquiry, there is no indictment of the third Xvi' 21 respondent of any of the charges. In fact, no further " V. been taken by the NHRC till today. Therefore, as the~said: ' has no legal effect, it was not placed"befo're_ the; empanelment would have been vitiatedfifforblrelyingon consideration if the report Therefore, there is no illegality 1ny.tli\§'~pg:@fder of appointment of the third respondent which found fault with by the tribunal. 'V fact, setting aside the order of a direction appointing__the_applic9,nt'injlplace third respondent which amounts to the the statute for which it had no jurisdiction. * Zbfllnasofar as the appointment by the State .coi*icerned, it is the prerogative of the Chief if Minister tof'selefct a person among the empanelled candidates in if " i"-wliom he 'has trust and confidence which cannot be challenged may court of law. Therefore, seen from any angle, there is no 4A:¢ij1_,1V_C§§ality in the appointment and the Tribunal has exceeded in ~ fits jurisdiction to interfere with the Valid and legal order of appointment.
22
18. Sri. P.S. Rajagopal, the learned Senio--r appearing for the third respondent _c.ontendc:"dll'th:a_;t. application filed by the applicant, he ;"had'_"1iot empanelment. Therefore, the':_ no opportunity to meet the case of challenge was only for the appointrn.en--t_ It is settled law that it is the preriogathiyle Minister, to select one eyen a person junior could be suitable for the said Dost. mg;'t§f5'ree,.: pennissible against such appointmevimll the third respondent was in the said force from~.--":18.2.1993 to 28.2.1996 and the yoomp1aiir1tsl'*pertained______to. the public was anterior to his AVassumiVng_Vch.ar§e~-- of the STF' operations and therefore, the said NHRC--reportsv.has"no bearing insofar as he is concerned. Even otherwise 'freport on which reliance is placed by the "'.v.u'a:pp.licpant only an interim report, final report is not yet subrriitted, 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 l\/ 23 Act, 1983, provides a limit of one year for taking cognizarlcelljoll' the complaints from the date on which the actplllcflnsititutiryg violation of human rights is alleged been and all the complaints which were directed to were all clearly barred by timeklaiid thereiore;.= report submitted by the NHRC no/vlai'ue; eye""of"law. The report in question is onlylllanllyintelligfi and not a final report, it is not Zariiiyifictiorilablle"also pointed out that the very" Panel is one without jurisdiction"anld; hasvsexlceeded its jurisdiction in enquirin§"._int_o ' the order of reference. Therefore, said report no value in the eye of law, as V.such_~ a totally. ivrrelrevant material to be considered by the V He sulzxrriitted a comparison of the service records of the ..thethird respondent which clearly discloses that «the respondent has shouldered more sensitive lllyrespionsibilities and that his work has been acclaimed not only jj_--by'-theAAlState of Karnataka, but also by the neighbouring State o'f"lAndhra 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 iv 24 for appointment, merit is the considera_ti.on_,_ his'1'é;p'po:Ir;rn1e;~i:is, legal and valid and do not suffer from any
19. He also submitted UPSC has to review the records prior to the date of consideration. TheAq~i}€.st1:;¢§ir;\.7Which is about 18 years ago, is rriatterl taken note of by the UPSC. on though the third respondent tribunal proceeds on the basis thatlhgel' has and goes to the extent of holdingthat he suitable to hold the said post. The eefinding Without anyflbasis, exfacie illegal and therefore, liable
20. Peri contra, the learned counsel for the applicant, Batra, supporting the impugned order contended :tl1at--non.t only did the State and the third respondent not place report of Justice A. J. Sadashiva before the UPSC at the «time of empanelment, but the said report is not made available either to the Tribunal or to this Court. The letter which is produced along with the application written by a non 25 Governmental Organisation Vimochana clearly * V' atrocities committed on two women..<'"'ln._fac-t, thefevidenpceG'v.. recorded by the Commission in respect 15ft those_ two w.5me'is._' would clearly show the nature torturlevanda lh.um.i1ia.tion they have suffered at the hands task The Panel and NHRC found that the police men were guilty of torture on Government accepting the hasfpadidjvcompensation to both of them. If it would have clearly guilty and who is to be held responsible. 'HeA._l11rth_er~.submitted after the report was sent to the State as lwellgasyto the DG and IGP of Karnataka, _._he sent" his remarks/ comments para--wise in respect of the by the Committee. The same was copied by «laB_otli~l....are produced on record. The said parawise _remarks clearly shows the recommendation of the Panel that force should not'have tortured and ill~treated those gvillagers, rather they should be treated with dignity and there be discipline in the task force. The said ~ lrecommendation is accepted by the Government. Further, the recommendation that follow--up action should be taken is also la/ 26 accepted. Similarly, the said comments shows that respondent was the commandant __~he.ading' Karnataka. He or his successors should ihave ir.iti'ated, against the persons who are guilty of such tortzivrdeifvoyrpp which they agreed, but till today no the NHRC over ruled the technical 'VAlVeg;;a1~v.Vobjections raised by the State and the__police__authorities report of the committee, thisilecohmvmendations. They admitted the céinifiensation to each and every Victimmof termsflof the order passed by the __21. it *.He fuither contended that it is too late in the day the third respondent to contend that this piece-("of not a relevant material to be placed before it the committee. The question before the .'4"--._ei'npanelling committee was whether persons to be empanelled _a1<eV'fit_Aand suitable persons, to head the State police force. If M these cases of human rights violation had been brought to ~ fithe notice of the UPSC, as a responsible authority, they would not have empanelled the name of the third respondent at all. 27 He further submitted the haste with which this _ committee conducted its proceedings and concluded':thle*matter it clearly demonstrates total non applica:t_ion:.of .' expected of a specialised agency' as thatolf UPSVCZ3 the records it is clear 10 years serviclezjrecordslllof candidates were placed before this of the committee was 30. ll.20l l."_ 1.00 a.m. and 2.00 p.m. i.e. are said to have looked into the and empanelled three persons. has intimated the State of Karnatlakpal his come back to the State as he was workingllinthep lStateblo«ff5l\/lizoram and therefore, the State
-"has «name from consideration but, in the V':empla»nele,d'«listf'though the committee consists of the Chief Secretaryullofu"the._Karnataka as well as the DGP and IG of ._ Karnat_aka~ whofhad knowledge of these things still included namev.i::1 the empanelled list. It only shows the manner in if iwhichltfhe proceedings of the UPSC has been conducted which ll"'--.:i_n__5turn clearly shows the total non-application of mind. .l'Admittedly, it is not in dispute that this NHRC report was not produced before the UPSC and therefore, they had no occasion Xl/ 28 to consider the findings recorded by the responsibilities of the commandant of the STF "
concerned. In fact, if the entire report of 'Panel made available, probably it would have theinyolxi/en).ent of the third respondent directly linigllthe con1.mi'ssior1"'~pf "these atrocities. That is why thesaid d'ocuinent"h.ad been kept back. Therefore, the court has to draw an advversle infeifience.
22. in which the Chief Minister has 'pass 'the'; order, when his Chief Secretarylandwere still in Delhi, without a proper note before him, clearly shows again total _..non« .»:=;.ig;>pli"catione'ofoVrnin.d which is required from such a "Vco»ns'ti.tutional*authority. No doubt, it is the prerogative of the Chief 'M:n'i's£ér.:o~§;5éiect one among the empanelled list and it is open for him "to select a junior in preference to a senior. Such "eibso1u_te power which is vested in him, has to be exercised in a _ rreasoiialble manner, fair manner which is not forthcoming in :l_'the--linstant case. Therefore, he submits the empanelment of T' * " the UPSC is Vitiated for non consideration of the relevant material. Similarly, the impugned order passed by the Chief l»~/ 29 Minister is also vitiated for the same reasons and th;erefof1_"e,: lac; submits the order passed by the Tribunal illegal orders is proper and does not sulfi'er'f_ro'm infirmity which calls for interference.
23. The learned 7 fourth respondent UPSC, Sri P.S. that they are outsiders to are brought into the scheme judgment of the Apex Court in if a request was made by the StateV.for'-- brought to the notice of the State, that i'i1.__4terms of.ltl1s'"';iru'dgment of the Apex court, the person is already functioning as DG and IGP of Karnataka Afithough i,sn"--..Vreaching the age of superannuation on isentitled to be continued in the said post for a A _period"----of tfxlvo-years from the date of appointment and as such, . 4"-.the.repis no vacancy and consequently, no empanelment can be _made.. ..l*lBut, the Government of Karnataka wrote back saying are not agreeable for the said proposal made by the Apex * .l.lCourt. They have filed affidavits and they have moved the court for modification of the order, the matter has not come up fault wiithvr 30 before the Court. In those circumstances, the State ' that no leave of the Apex Court is requipredto go'ahe*a:d appointment. Therefore, they requested' the to con've';1_e meeting for the purpose of empanel_rnent}.V_l}eft in obedience of the order of thefiApe2;_ppCourt:theyffcalled a meeting on 30.11.2011, records of the five candidates which was After taking into considei*é}fiion the and the law laid down by the case, they selected three same to the State Government. 1' the procedure prescribed by the Apex courtin.Pral§ash'Sirigh's case and it cannot be found Pozifis FO1i_"CGNéIDERATION .24. .Ir'i";the light of the aforesaid facts, material on and the arguments of the learned counsel for the 1' apartiesfi the points that arise for our consideration are as 32 directions issued by the Apex Court in Prakash T. and what is the procedure to be followed by the if as the State.
26. The law which govern country is the Indian Police Act,' independence despite radical changes in the situation in the country, tlieliofiditfon was not given much needed Government of India on 15.1 i.1y97'/'apgfig-;lt§§Zi§:.3a Nationalf'l3olicle Commission (NPC) for fresh performance of the police as the law--enforcing- agency llt'oI5protect the rights of the citizens
-=.enshrin;ed in the constitution. The terms and reference of the A'-Commission vvere wide ranging. The terms of reference intera'l_ia "i*equ_ir'edv""to examine the role, duties, powers and V _respoli1sibi_lities"l of the police with reference to the prevention . Wand control of crime and maintenance of public order; evaluate _thel'p.erlorrnance of the system; identify the basic weaknesses v..or___inadequacies; examine if any changes are necessary in the «llmethod of administration. disciplinary control and accountability; inquire into the system of investigation and \\/s 33 prosecution; the reasons for delay and failure and _ the system may be modified or changed "
scientific and consistent with human purposes. After examination of Vthopse aspects if has submitted so far several'ireportsfl the recommendations of the ""l'herefore, the writ petitions were filed for directions to the Governrnentof framie Act on the lines drafted by the has been done.
27. lApe>;V:Courtl"'felt having regard to the gravity of the problem,,_ the preserving and strengthening the ru,';;e"of lavv,'-total uncertainity as to when police reforms vvould" beliiitroduced in spite of recommendations and reports it thought it fit to issue appropriate directi_ons.~forimmediate compliance so as to be operative, till l"".__ls"uch 1a new model Police Act is prepared by the Central 'C-.o'vern«ment and / or the State Governments pass the requisite yigliflggfislations. Accordingly, they issued directions for setting up [of State Security Commission, minimum tenure of DG of police and other officers, separation of investigation, Police \x/ 35
28. Therefore, by virtue of the direction H Apex Court, the responsibility of emp:inell'il:gp_ for the rank of Director General of police UPSC. It is relevant to notice that'..thisA'is'sued, it is the State Govemment,;=vvhich..iwasil'considelringxvho should be appointed to the said Union Public Service Commissiongwoulgifact committee which would themsenior most officers of the departn1e'Iit'.'of:*the the said purpose they are expected to .co1*lsidei*ation:--
_ a) Length bj):\/'ery goodreicord and V '_ -- of experience
29. 'Here itself we want to point out the word used is good" record" not "very good ACRS" i.e. the annual ._confidc'ntial report/ performance appraisal reports. 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 _ service of two years from the date of the said'"appoint.n1'ent,_ll notwithstanding the fact that before the of at date of superannuation occurs. .>iTh__e third direct.ioii]is_though _ the tenure of the Director General lofupolice as two years, it does not relieving him of his duties if he is convictAed_in._a.vll_coi1rt"~of'for a criminal offence or in p incapacitated in discharging has to be done of course in consultation witthythe said. 'security. commission.
31. ll is which is now prescribed by the juidginentllwhaichlllis 'being followed in the appointment of DVGP and Kamataka. One of the controversies is the very act on of" the State calling for empanelment on the assumptiovh' the then incumbent would relinquish his u"4"--._lo'ffi_ce on'v...f§O.l1.20ll itself is not correct. Sri. Achut Rao the age of superannuation on 30.11.2011, but he had l'"=..notl completed two years of service from the date of his «flappointment. In terms of the Supreme Court order, he was entitled to continue till the expiry of two years. This portion of W, 37 the Apex Court order was not accepted' by the"State.lV.'1'heya,0 made their intentions clear to the Apex Clourit. Court did not accept their contenti_on. lllApplicat:1'olns:
before the Apex court for modificatlion.s'/directionslVnotlfto insist on the said condition. However, the said Sri Achut Rao agreed 1.2011 which is clear from the fHe"l the meeting on 30.1 1.2011 coj;ive'11ed..by the IJPSC'--'as«_he_was also a member of the UPSC_,_. the._lValcancy~'larose and appointment was to bezvmadel"
32. _ . _, It not dispute that 5 IPS officers in the rank of _ working on deputation to Mizoram Government in fact was not interested in coming back to ' Karnatalsalewhich he has made it clear in writing. Another 0' "am'ong._the,}n Sri Kuchanna Srinivasan retired on 31.10.2011. .fl--nl*1:is place one Sri. R. K. Dutt, IPS, was given promotion and " name was also included as one among the eligible officers. 0 An office note was put up stating that a panel of names is to be prepared and placed before the UPSC for empanelment. In L\/* 38 fact, the office note on 28.10.2011 discloses for the post of pop and IGP by the Hc-¥n;hlle"Chi'ef be delayed since the meeting of the 30.11.2011. Thereafter, the ._l_to. the l proceedings of the meeting' andi"'sele'etll"'one a_m'ong"l§the IPS officers from UPSC list. is retiring on 30.11.2011. meeutinig and due to shortage of time to officer as DC} and IGP on (Head of Police force) Karnataka. ._ an approval of the Chief Minister among the four officers in the rank DGP tolbc inadditional charge. However, no such ._'lll'orderv-':yvias._passed. "ln-----fact, on 19.4.2011 the Government of '~._Kar'11.ataka .ad.d1'=essed a letter to the Secretary of the UPSC foiwar_dingl.lth.e nxaines of four IPS officers in the cadre of the 00 _DGP.l''''Howeveilj at the insistence of the UPSC, even the records ' tinwill.in.gt' candidate Sri. Lal Rokomov Pachav, were also sent. 0 iAdIiiitt:edly, in the case of the third respondent, the NHRC .:report was not sent for consideration by the State Govt. It is in ~ lthis context i.e. whether the said report is relevant and V. 39 material for not for being placed before the':.. consideration, has to be decided.
REPORT or JUSTICE SADASHIVA Il'lANlELV AN'bgREPolRT/ e. ORDER OF NHRC .
33. The case of th€.QpappliC'a1it:Vp_: is; "the saidrepvdrt which has recorded a finding that by the third respondent' atrocities on villagers and__ Comprising tribal peoplevvasfla ought to have been placed for co_nsildVie*r:atio1'1 the UPSC. The State has taken a definite if been placed before the UPSC and ULPSCA. had "takeln into consideration the said report, it Would" have been a case of empanelment becoming void, for irrelevant material. Therefore, the question arises is, whether the report is a relevant 3"-'««___linaterial' .94} an irrelevant material'? Unfortunately. the said l'i--reportl"Af.s not at all produced before the UPSC. It is not even
--fillprofiduced before the tribunal or before this court. The fact that Tithe 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 _ of the said report. The said report is neither the Tribunal nor before this Court.
before the UPSC the question of,U_l?SC not arise. Therefore, the contentls't'.o.f"the a:';ni$rstery. But from the material on record, glimpse of what the report is, what are its the objections of the State and§~vt1'1e_gthird:A__ Sfaid report, how the NHRC has as the report and the reliefpfrie' tol._lth'efvvictims of the atrocities committele1._b':\I.J;h\\': 'able to gather the following facts from thle"--proCeed_in'gs/order of the National Human rights "l_§)I11Ir_I'1S'SiQ_I_T1V. dated 1.2007.
34." 'V Special Task Force (STF) was set up by the 'State of Karnataka and Tamilnadu to apprehend the notorious V' llfo.res'ti'-._.brigand and sandalwood smuggler Veerappan. The
-f.Nl~i'RC M received a number of representations from some non "..:lGoVlernmental association like Tamilnadu and Society for if Community Organisation members and also from individuals including that of Dr.S.Ramdass of PMK, Justice Dr. D. lVb'/ 41 Chandrashekar retired Chief Justice of Govindamma and Shri. Ponnuswamy, alleg_ing.. scale' 99 harassment to the villagers and tribals in..4thjeuborder 'areas the two states and the gross violation 5: human. by the members of the two special took cognisance of the compla:ii1t_s of the reports submitted by the that a detailed enquiry was requirvedg. on 18.6.1989, they constituted persons ie one from the judiciary'and;othef1"hayingeiipeiience at the highest level of police tov:iool~::_p_as.pects of the allegations that have been rnxadae in Vthelconiplaints. They also decided that the .~,said will recommend to the commission the actions that ';shoul.d be:tal<;en"~--to redress their grievance that are found to be justilfied. on 20.6.1999 the commission .consti'tuted. panel of enquiry with Hon'ble Mr.Justice :9."*A;J.Sradashiva, Former Judge of the High Court of Karnataka ._as_Cl'1air1nan and Sri.C.V.Narasimhan formed director of CB1 as "xlrhnefnber to enquire into the matter and make its ~ ' ,"recommendations to the commission. 42
35. The panel held its first meeting on Bangalore and determined the modalities of sittings at Gobichettipalyam and Kolathur' Chamarajnagar, Mysore, Bangalor1e'.__ Karnataka. Statements of 243lpe_ir:S0ns 1l§§../Jglléged . victims, 4 representatives theViil'\l'dC§'slla-rid officers were recorded by the The statements were recorded in concerned and adequate opp:O«:*t?uni£i'j.';of" of the witnesses were giventov'Iirithegficourse of enquiry, even persons {:={ho._ itfiled.»_lc'o--mp].-aints, who were the alleged victims of the STFV"so'ught"=permission to depose before the panel. Both the of Karnataka and DGP of Tamilnadu raisedV"'objEectio1:.fibeforeullustice Sadashiva Panel with regard to theft to be held by the panel. The Panel consid.iered.~ objections and held the procedure to be ""P.-:ij'V'~.__adoptedif the Panel is akin to that available to the P conirnission appointed for recording evidence by a Civil Court the evidence produced is recorded subject to the ~ Lobjections raised to its admissibility which had to be later decided after hearing the parties by the concerned court. It Xx/P 46 objections filed by the Director General and Inspectorv 1 V' of Police on 30.4.2005 and para wise corrrmentsul is, it the para wise comments submitted A perusal of both shows the Governirnenti has toxi/redlirie of * it the police department and is a of the 'comments of the police. At this juncture it out that, when the third respondeilthin General and Inspector Gener'al possession of these comments to produce them as annexure-.__to has not chosen to produce the copy of the report which'is i'n_his possession. Therefore, we are constrained tolgo is stated in the order of the NHRC of the Panel.
Vi'c~cou1d be seen from the order both the Gove':nme.r1tsi§t:ook up a contention that the inquiry panel had ' *.__lexceede'd.its brief and enquired into complaints which were not complained to it. To consider the said question, the took up that issue for consideration. In order to ensure ldexpeditious disposal of the case, the Chief Secretaries of Karnataka and Tamilnadu were requested to attend the NHRC ll/c 47 on 7.12.2006 for discussions. Accordingly, Sri Chief Secretary, Government of Tamilnadu and Aggrawal, Additional Secretary, Karnataka the Commission on 7.12.2006.
them that in dealing with the'»lc:a~ses vio1.atio:ii rights, the approach should be_one:__o'f__vrespectyvlforfprecious human rights, compassioniifiandf--_ If there had been violations of should be properly redre_ss§c.iCl technical or indifferent approach to rights, that too by a benevolent of the State is paramount may breed discontent and the rule of law amongst the populacev. _lt iheyartlenilngfvto note that those gentlemen who :'vg_V.appea'i'edE"'before2thefl§ll;ll7tC, conveyed these sentiments to the and those Governments appreciating the the problem gave up these technical grounds.
" is 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 51 Disrobing of a woman may fall short of I'(lp€"--l:)'tLt' its "'00 . certainly brings untold ignominy; and sii__[).'e'riI'i_(:,i_':vto'''V '_ 5 her. Therefore, these three wornen Zshofuldreoeiiie interim relief ofRs.2 lakhs earth.
43. Then it proceeded to the to men, illegal detentions Compensation to them. Thereafter, at para' names of 89 victims with interim relief.
The first wife of Rajendran Lakkampatti" of rape, she was awarded absence of any material and the report beiiig not we do not know what her say is v.1_;1 the But,""in..__the record we have a letter addressed by .7Vimo"chana,'a «Social Organization, to the Government of Karnataka,' ivlieredthey have set out the statement of two other 'ypersonsytoa vvho whom Compensation has been paid. That 0' some light about the nature of investigation by the STF 'headed by the third respondent. One Mrs. Erammal, of Javariah - MW1, filed an affidavit on 28.1.2000 before 54 in situations where they have-J'to'----interactsfu;fit<h civilian population. The commanding. higher levels must accept dtitedir personnel responsibility to ensure propriety of conducttofu ' entire personnel under "co'm_rnand" ' in"
matter. The Should not rest content with remote in this regard. s-hould "orders to all the persorin'el5Qjin--:'_ tfifs' (1; enforce the orders during ope_ra*t.i_cns;"'
46. TheVcorniiienits_:of lGP as well as the State is as under: --_ recommendation may be accepted. Strict already issued in this regard and the f' . "same ulililyfbe reiterated."
if It is unfortunate, after accepting the commission , rep'ort,5 paying compensation in tenns of the report, before this 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 V. 55 been said in this regard 15 years back. Before' the Tribunal they are disputing Commandant Officers, responsibility:loflflthe characterizing this report as one by if limitation, is giving an imp'1*eVssion't'hat:"it; isnot {2m1~ch«:i1e paper on which it is written. Accfording not a document which is of any the UPSC and strangely the co-fi'--§¢.nd§.,._if..gtv'hfladpbeenlllprodueed before the UPSC ar1di*"if this report and did not empanelVv:the'* then it would have vitiated the empanelment.._4on.Vthe_ ground} of consideration of an irrelevant , matei*i§;1.l.V One thirrgis certain. The Government of the day and 'v_jfithéV'third_respondent are afraid of the truth. They do not want the truth. Therefore, now we are convinced, .delibe'rately "the said document i.e., report of the Justice if.§adashivVa¢Comniittee Panel has been kept back from the _' p~__T'1'._ib'un:al as well as before this Court. AND MATERIAL if 48. Now, the question is whether this report would have had any bearing in the empanelment by the UPSC. The i\/ 56 argument was in the first place the third respondent'*'lvas__:'1{ot indicted. Secondly. this is an incident which years prior to the date of consideration of of:
respondent. NHRC has not takenup any'followup.aetioninor V' initiated any action against any poli:eemen,l'in_ third respondent. It is also barred. by "wpithoutljulrisdiction. The panel members have exceeded"their_.jiiiis'dic_tion.
49. Nowlit disputed lithe' record of the third respondent 'vvastjvthe Commandant of the STF, Karlnata.ka;llrw'as_ lplaced"'b_efor_e the UPSC for consideration of his claim: , State gave all the relevant particujarsf they-. also forvvarded a bio--data prepared by the a copy of which is made available to the Government. Para 7 of the bio--data prepared V_.b3r__the third respondent, which was part of the l"".__lrecords"placed before UPSC at the time of consideration of p ernpanlelment 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 ix/i 58
50. Taking into consideration this rendered by the third respondent, it appears awarded Gallantry award to him.
services rendered by the third _respondent rewarded and acclaimed. This isllvtkipjei»positivc_f_side5 of story and this was placed beforeithye this claim for empanelment. Certainly which the selection authorityiigytlfiqould fat the time of empanelment' a Commandant of a Task Force' 12;' when he claims under his leadership V were killed in various encounters eandv pfo_rA'._Vth'e~'feV fortitude, courage, gallantry, "Vinvesti;;ation,__intelligence and leadership skills, displayed by
-in operation which are exemplary and unprecedented the annals of the Indian Police, he is fpersonally,rewarded a sum of Rs. 160 Lakhs, whether only that V' lljpotsiti-ve aspect of his activities should be taken note of or his
-.li'.-entirlelbconduct 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 we 59 another facet of the very same person in connection services rendered during the said period which ' he conducted investigation, how he.»eo.rnmafnd'eVdstile"force:_ which were under his control and his:"1lead_ershit5~sldlls be considered. How it ceases _t_o"~._be relevant land._"beC.c--mes 2 J' irrelevant. We have set out the above. also set out what the report of and what is the finding of the NHRCJ' from the aforesaid materialu and against the STF personnel of iareticommitting atrocities on the innocent -'villages which are adjoining the forest or inside.the=.forest,< allegation is, they committed murder,' " false encounter, rape and torture. The record were lodged with the National Human Rights No action was taken. It is only when Dr. Justice D_;lv1_.Chandrashekar, the former Chief Justice of this u"4"~._fCoAurt tools:«:'up the cudgels and lodged a complaint, the moral grauthorliilty 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 L 63 same sensitivity is not seen in the third resptundeiifl » particular, concern for women-hood, the phuman"'rightsVf=safety and welfare of these illiterate, poor and tribal 'p§op1:é- residing in remote corners adjoining the, forest7orA._inside_f the forest.
51. The questionvisgzyvheliiher'a such a bent of mind is suitable toyhead" which is expected to orderfsaiety and welfare of women the people belonging to socially tribals, illiterate and poverty stricken, hapless masses in"-r*u1'al areas. Whether their interests is safe in" the hanr:lsof sucha person. is it not a fact which the considermbefore empaneling the names which are given" to heada State Police Force? Therefore, we are of the View when~..__the_v'ser\%icle records of the third respondent was placed u""«__Vb~efore UPSC which included his tenure as a Commandant 9 ihefSTF from 1993 to 1996, for 3 1/2 years and when he has M 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 _ said period and not, only one side of it a part~io~fAA.iit:l:.. if placed before the UPSC is a relevant finding contained in the report of'Justice.t§adashiya;pVa_nel the order passed by NHRC, r_eferf$~to:th':e yerymsame period is a material been 'placed by the Government before the Ir--1~«:.:tlf'§'g'.igibsengev of that material, the assessment of of the third respondent by' to head the State Police forcvel'is..\_ritiiatetlf:,3 ViTo"'.err is We learn lessons in life. It isllquite atniosphere in which they were functioning, "policeni"cn"ffhaveffindulged in such acts though in __normal_{&' 'circumstanfces they would not have indulged. they should have the decency of regretting is not forthcoming from the third if _responden__t'.' the contrary, in the statement filed before the 1".:"'.1:'ribuunal,"after referring to the letter written by Vimochana -- _Fo.rurn_..fAi'or Women's Rights, to the Government of Karnataka, they have made allegations in particular against the " .. Lfthird respondent, this is what he says in reply at para 12 of the written statement: -
67
respondent No.3 and the junior oflicers _--:J:2ere"
operating at their discretion in their areas and these junior officers a'Zso'h'av_e'--«yto.;share_ V V' the command responsibility. "
52. This shows third"'res'pondent.
His supervisors and juniors isl:'1afirTeiivVth«eir.responsibilities and not him. he -iyibya Or Saddam Hussain of place in this democraticieour1t.ry.;'--1:;lts eult.u1'e,'-.heritjVage and people will not tolerate such pec,lp_.1e_AVfor a,s'e.r_:Vond.-- He must know where they stand today. Though' one among them, if what is stated iI1..the auffldavitlof those women set out above is true, he 'xVis_Awor:se* thanxthem." "Even after 15 years there is no remorse. He, ~no:..:_'pfepia1«ed to accept the responsibility. Now, we understand the report of Justice Sadashiva panel is _ 4' ldeliberatelytkept back from this Court both by the State as well Atheathird respondent who are in physical possession of the report. We appreciate the gallantry award given and we due respect to those persons who laid their lives in fighting against the menace and our heart bleeds for them. iv 68 But under no circumstances, whatever may be the pro\='oVcation,A we cannot approve for a second, rape, disrobingffof ' giving electric shock to them, torture. .It~canno;t 'ac;cepte4C_fit»as5._V a means of investigation by the police";pinilfeliciting'informationf:
during investigation, in findingfl_ou.t the *-wher_eab'ou._ts~...of}the 2 T' accused. There cannot be anyAycovnip_romise." It is totally unacceptable. It uc'olo.nialmind set and it has no place inwfree 60 years of independenc€_._ if thefsaid means against hapless, men and women who are residing Kin the forests, the person to be blamed isdnot the 'iVpolicc:_4co:nstable, who actually inflicts the said pain,ibututhefpersohsfwho are heading the police force, who are responsible for the said heinous acts. This that still in some police officers there is no change ofv'r11inLdAfset. They are not willing to give up their old ""--._h'abits. if 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 theh/ 70 issue, it is a case of violation of human constitutional rights. The Government of the "
importance and significance of the representing all the people an'cl__.also"
unfortunate victims. They acceptex"d::tl:e_ of ll<lHRC, agreed to pay compensatfoii._ Thus, they discharged their to the people of this Country. factual finding recorded, .lfl7lie~:,§efiicaCy Of which cannot be diluted theev5gvrou;rild ofjurisdiction, etc.
53. is in"vthisl'coln-telxt, it is of utmost importance to appreciatcrwhhay-. "the: Court has stated in Prakash 'Jfhey prescribed three criteria to be taken note of before empanelling candidates. One of the crite1j;o11.ri~sA that the candidate must have a "very good They have designedly and consciously used the word _f"vleiy. good record". They did not say "very good annual service record". The annual service record is also one of the inputs vfwhich forms part of record of a public servant. In addition to a "very good service record" as explained in Service Law, the \/ 73
56. Therefore, it is clear that it is not only _an1iuaVl"
confidential report/perfomiance appraisal report _ if placed for consideration. It is one record which":
constitutes the records to be placed :b__ef'o.r_e the'v_gempa.nfel'li'ng"~ authority. In fact, the word usedrby the=Sup.re::ne';véourt is he therefore ' very good recordfigandtherefore" all record pertaining to the candidate includingthelannulal record is to be placed. If any_ is not placed for considerationi. or suppressing relevant niatreriallr would amount to non- ' which would affect the consideration ' of process of appraisal. s'el'ecti'on'which in turn would vitiate the empanelling itself and the consequent orders. the service rendered during the relevant period,' the thirdfrespondent is entitled to Gallantry award and u""'--__Vc'ashppriceffof Rs.l.6 Crores, which is unheard of in police as he himself declares, certainly all other portions of lhvislrecord during that period also should be taken note of, as it fforms part of the same record. It is that record i.e. his record during that period as reflected in his service record and his M/, It is not 80 used and is frequently used as a general"">V"
description of the things that must nQtv_u_'bg':f- I done. For instance, a person en"ttrusted..yu)i_th_la discretion must, so to properly in law. He ;'must his H. attention to the matters he bound to;
consider. He must.»-C.Qll hiS"otiLll_1"~att/Jltitpn'tothev':
matters which ivtorcforisigder. He must exclude froyrnihis obey those often is said, to" Similarly, there that no evenlldream that it lay the authority. In another, it is = taicing into consideration * extraneous 'rriatters; It is unreasonable that it rinigfitA.almost""beV described as being done in it " in fact, all these things run into « onevanotiier. "
lliijjnust be proved to be unreasonable in , sense that the court considers it to be a decision that no reasonable body can come to. 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."
1%/, 82 cannot be attacked on merits. Judicial reoiew " V' V is permissible only to the extent of whether the process in reachino decis'i3on.; V been observed correctly and as such. In that view Q1" 1--hie we there is no justification for.:t'f1e High~.Court have interfered with the"'ord,_ei--ruinade by"-the:
Gouemment". ' t V it and contended a:f_oresa.i:d _are I totally irrelevant and if it had? UPSC had taken into consideraition ha"d'*n'dt ernpanelled the third respondent, the been vitiated for taking into consideration «irrelevaritd mbateiial. r_'«Lea1'n_ed counsel for the third respondent, in additioxi todVu_th_e'gaforesaid decisions, submitted that the said V _report's w«:_:'revr'e1ating to the period about 15 years back and K not the material which has to be looked into. In support Vth»is..:'contention, he has relied on the judgment of the Apex »C.onrt in M.V. Thimmaiah & Ors Vs. Union Public Service :."Commission 82. Ors. reported in 2008 AIR SCW 229 at Para.1 1 which is extracted as under:-
89
The argument that the said record perte~.ins,_to the face of it is fallacious. '1'I'ie:r"efore," the supports the case of the Vap.p1icant"th._at unon- ptlacixighthe said record vitiates the empanelrnent. it
67. This to the foré the importance to be attached the".;':§1ppr_ai.stai.' in this context, it is relevant to see. stated about these records.
68. Minutes meeting of the empanelment _ Cornrnigtteee. is pro'd.u_ced the fourth respondent. The relevant paras reads' as ''under:-
V t It was brought to the notice of the '.'4Coni:rnittee that, as informed by the State Govt, c no disciplinary/criminal proceedings were it r._p#p:ending 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. V 92 the range of experience for heading the police forcefas ' the criteria. As no guidelines were prescribed,_..they'nto'ol§ into"
account the experience of the Officers in theplcoreparyeasllikeppllayv and order maintenance, criminal' i.nvesti'gat1'on, apdrninistraltion . etc., along with experience in the of vigilance,' intelligence and other fields and empanel_led
70. We have. iaillso extracted in full what the infllhis Bio--Data about what he stated that in the entire history of.' pq1§£;"¢--r such a service is not rendered by any polilcenienlandhin recognition of his invaluable service, Presidentia.l Gallantryll axvard is given to him and he has been :lCrores the State Exchequer. He proudly leadership 60 gang persons were killed in various en'co.unters, whereas the Panel report says out of 60 Bbvcases are doubtful in nature, which are in the nature of fa_ls_el encounters. If this record is taken into consideration if byfthe UPSC for declaring that he is suitable to be empanelled, ewe 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. date of consideration of his case. i if V
71. He has stated in the statetnegfi» he was working under two as .p , DGPS and two Chief Ministers. if the atrocities are committedtlll should share the responsibility. Now the when they write the would write any adverse rem_ai'ks2in as what is stated in his ACRs would to f them also. Hon'ble Chief Ministers, «who ha--vle".fiiolfwrfolle to play, have owned the responsibi1.ity. That what is expected in a democracy. They their concern and paid compensation.
did not have the political will and courage to direct against the persons who indulged in these May. 'be, they had soft corner and sympathy for them, for _lWhie»h_.uthey cannot be found fault with as, as the Head of the State, they had kept everyone's interest in their mind. In one «flhand, they paid compensation to the Victims and on the other hand, they paid liberally Rs.l.6 crores to the third respondent V 94 and Rs.8 Crores to the persons who worked under _ this background, his service records onl}p,ArApVshows--tl1~at:he'is: "xr¢1?;,f"
good". It is on that basis, the UPSC if that is the only material to be looked idntorand the UPSC, their observations thatfhen be faulted with. Then how the true service record and vvhat isV_ibebl._attached to the same. Can to assess the suitability of ernpfanelled and does it serve public inj;erest'.' = » _
72. in the'. ai'ore,riieritioned Badrinath's case, on V whichareliance Vis'~p_laced,V'it is categorically stated that adverse remarks an'=Qfficer for the entire period of service can be taken into :"co11sidn:'ration while promoting an Officer or while 'passing a_.__zi'ovrf:ier of compulsory retirement. But the weight be attached to the adverse remarks depends upon _cc.rtainA'dsound principles of fairness. if the adverse remarks relate to a distant past and relate to remarks such as his not «ffputting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, We 95 particularly if there are no such reiiiarks' before his promotion. This is the compulsory retirement. If the Vladverse rema1'ks:'v_: to a if period prior to an earlier,.p.romoti'on..ngtheycgmudstd be treated as having lost their sting subject however to the rider that lack of integrity they can be strength fully so as to be if
73. the law that service records anterior to ten years "V-vvas_ not relevant. If the adverse remarks 'x"reAlati-rsig~ such as;"--------his not putting maximum effort or not work, do not affect his integrity, if record show that he has improved and his V'1[,.__.""S1.1p€I'lO1ISV"hal/€ duly observed in the service record that his fperfoirmance is good, then certainly his past record at the ' ''.''initial stage of his career or anterior to ten years cannot be held it 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 V 96 depends upon certain sound principles. All . assumption that if a public servant knoyvinglyg." has committed an act and when it is'».,pointed has realised it and has transfor.mggd.dV" an is given for correcting himself and he is a reformed man, he cannotfjtbie Vl't'h.evu_benefit on his past history. Therefore, all ought to have considered?__b'ef;'wreV respondent if the report of the NHRC had been placed before the benefit of such consideration"by said material, as such the empanelmentfllof ,the.t:hird. respondent is vitiated.
"is contended that once the UPSC has selected and"~l'_emp'aineplle.d-the names, irrespective of the seniority or 4 merit, whatever that might had prevailed on the UPSC, the Chief l\/fin-iister of the State has the prerogative to pick up the _ «person: of his choice among the empanelled candidates ignoring seniority and merit. In support of the said contention, V reliance was placed on the judgment of the Apex Court in the State of W.B. and others Vs. Manas Kumar Chakraborty U/a 99 cover was opened and some official took it befoI'c.:'_the'V.Chiefr. Minister, who has signed it. If that t?§1c},vay_ power conferred on the Chief Minister is exercised" lgaeping in mind the public interest, it is welli»"settl.ed th'at_V:f'Cour:t should not interfere with such ordersAahdi:*tx?ill~--._notvinterferef with the same and leave to their conscious whether such art by them in the manner they onelthing is clear that the Chief power has not looked into the records and' Panel report and the order passed by the .' u the Tribunal, a specific ground is urged that "Was kept in darkness. Now, this report has _come"to 1:'-ght, 'fivhich was in his possession. The stand of the .,/1f"*thirdrespondent is clear from the statement of objections he he is trying to drag the former Chief Minister under firwhom 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 Q/.
100 that material fact has vitiated the €II1pZ1I1€'l!~11'.':l:1'§t.Vvl.tl)§' consequent order of the Chief person and therefore, it has set aside order of 'V
78. Assuming at the which is done in haste, didfnotflhave the panel report before him, when the matter reached; before the Tribunal. -the Tribunal and the aforesaid ir_1"p'artiCular the stand of the third respopnld.l_ent should have dis--assoeiated himself_withld"t.he'v said apspointment. Instead, they chose to _the__saidford.e.r.by preferring these writ petitions and Hm they want to give a go bye to the stand takenlby fifteen years back and are taking a fstand,l 4' is just opposite to what the Government did, "..gwir1g.__anl impression that they are solidly behind the third '- «T:-'respondent.
Q/, 101
79. As stated earlier, we do not expect his it Write in the ACRS against the third r'esp'o«ndent '.adver.sel'g remarks. Now , these reports are belfore--._th€ Chi_e1'~ the stand taken by the third resppohdenthvhin the "staternent of l' V objections shows that therepis noV.it'1'airipsforrnation 'or. remorse to what has happened in the' concern for the downtrodden, socially ltribals, helpless women, the €.S'Lat_e Mlpreferred these writ petitions.__.llligiot concern. On the contrary,:V'the--,writlpetitionfisfiled justifying the action. It is not a legal issuefias far"as7he concerned. It is a moral issue. _EV€I1'Tl§.Q\V"ll, is not too late and we are sure he would keep ?_lpublicl: intlerlestfin mind and would have before his eyes those faces'l..__o_f hel'p.1ess"tribal women who are raped, tortured and _ humiliated and ensure the public that in his dispensation such it things would not repeat by taking an appropriate decision. CONTENTIONS _8,,Q_.E It is in the light of the aforesaid discussions, we do snot find any merit in the contention of the third respondent that in the original application filed before the Tribunal, the lO2 applicant has not at all challenged the therefore, he did not have an opportunity to meet "
devoid of any merit, because, in the objections filed, major part of objection to report. He is in no way and have extracted above shows those allegations.
81. Secondly, its .phalle_nged thlemlapplication is only his appointrnent that Minister has unbridled power to l'i.vgnor.e appoint a person of his choice and it is not t,amenabley_utofjudicial review. If such an appointment hladybeen made on the basis of empanellment madefin naccolidance with law, we would not have interfered We have held that the empanelling authority _ vdidflot have all the material facts before assessing .u""--__lthe claim. 1 of the third respondent. Therefore, if the jernpanfelment is void and illegal, the consequential order of appointment also has no legs to stand. The order appointing lithe third respondent is set aside on that ground by the Tribunal, in which, we do not find any infirmity. V, lO3
82. Thirdly, it was contended that his tenure ll 8.2.1993 to 28.2.1996. These complaints'p.er_tain _;+.f{"_ti:¢ Vpexiioci-, anterior to that and as such it is barredibyl time Section 36 of the Protection of lH--ufn1an 993.": As l' V already set out, the Committee not pertain only to twenty complaints. It all the Human Rights violations of and which were brought___ commenced an enquiry. " the statements of two victims who the third respondent as being present4lwhen'--th"ey werelltortured. As rightly pointed out _ by l NHRCV in report and as accepted by the State Gloverrrmerit, _itai_s not a legal issue, but it is an issue pertaining yhuniaitllrights-...--:"It is not the case where any action is taken _ against a_t_riy,iridividual for Violating human rights. The Task :F'0.,1'C€ Cifxthe State committed atrocities on villagers of 48 ylvillagels and seen from that background, there is no merit in l the said contention. D 104
83. It is contended that the report submitted':by:"p'theA4 Human Rights Commission is only an interim re.p'o1't.._Unleses"'--i ' final report is filed and directions are iss.ued,.'_lthe4l'sa;1'dllreportu cannot be part of material and therezforef,-.'_'_Atnat constitute a material fact to belp_la€.zed before.the =lFor r L' the reasons, we have already in said submission has no value Vbe;;1iis'§~,__ in the nature of an interim report; istwsedg that atrocities have been compensated and what is relief. Insofar as the finding of were committed is concerned, as it is lbylthle ._lGoyernment and not challenged till today efither by theg_lGoVer'nment or the third respondent in any knownTlltoi_.law, itmhas attained finality and on the basis of fi'nal=.reporf;"--«followiup action should have been taken. They are l right"-to the' eiftent that even NHRC has failed to take further .'l"--._a'ction in'vtf1e matter. But that will not enure to the benefit of y.the'thii*d respondent. We do not see any substance in the said contention because the parawise remarks to the report by the «~lPanel was prepared by the then DG & IGP, a copy of which the third respondent has filed in his writ petition, which clearly 3/ 105 shows the responsibilities expected of by the Departlmeiit:'p"a_nd._. . they have promised follow up action. The person" it said post, after fifteen years, has no .l say that either the report is wrong" or thlatit is tilme. ; Even after 15 years, there is no trans«formationa_nd' remorse. y 84. Lastly it was 'Tribunal had no jurisdiction to direct the the applicant as the in--cha_rge*~ judgments were cited to shoyy the appointment of an incumbent was to continue in position till the selection process' isllreydone. Reliance is also placed on _ the judgnient of 'the"Ape2{ Court in the case of Satheedevi .vs. another reported in (2010)5 SCC 622 y§iher5e_iri 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 correct the defect or supply the omission': '
85. The Tribunal has not i*.e-w_rittenl'=.or..l it supplied the omission. All that<the.Trihunal dnce the appointment of the third respoxndleritpis set and until the UPSC again reconsid--er:s, the of the reports, during interregnurri. the State to appoint the Courts have: no jurisdiction lappointl a particular person to the said it the State. In fact, the Supreme tiitizens for Justice and Peace .vs. State of lGujVarat aiidlbthers reported in AIR 2009 SC "1 420l:ehl:as.,t'he1d._ as r§i15ws;--
appointment of a government is the prerogative of the particular» " goioernment, particularly, when it is a 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 directions to appoint a person in particular sensational post. The Tribunal has not issued such appointment. It has set aside the a'ppoint'men_t' oft respondent on the aforesaid grounds set"-outinl' .det;_a'il--..by' us. 2 T' Therefore, it was of the View that rechorisidersiihis case once again, he should no't.V:tb.e the same post.
Among the three persons:.whos:'e iia.;i;¢s§."'v;¢jf:e§1,»'einpaneiied, one person is worldrig he is opted out of contest_._ namely, the third respondent [As far as the applicant is concerned,he is the senior"most, he has unblemished record. That probably what: has vs./ieighed in the mind of the Tribunal. V the applicant andmthe third respondent are retiring from A junior like the third respondent has T enjoyed his from December 2011 till the date of the u""--__o"rder. It may take some time for the UPSC to redo the whole th_i'ng and in the interregnum they want the applicant to occupy the said post. In the facts of this case, we cannot find any «Vinfirmity in the said direction issued, which is just and 108 equitable. Therefore, we do not see any merit in contention.
87. It is further contended applicant, there are reports whi9_,h"%lre not l1'}V'0l/V1vrab._1"€"~~~l.O =him 2 L' and it also goes to show that he as" to be made out, which was not'Ul_'SC. When the applicant filed thegpevtitiorgf of Human Rights violation orders passed by the NHRC, filed a lengthy written statement in fact, citing the judgmentscfp the Court and other Courts, he did not chose to utter wordrelgarding any such report against the the time before this Court, in the writ petition?'1'iled.,v'll1ei' made an attempt to produce some reports. These, reports' cannot become the subject--matter of these '""'--._lp'roceeding:s as they were not the subject--matter before the _lTril3-unlal. If there are any such reports, it is always open to VA 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. M/,